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Full text of "The Code of Civil Procedure of North Carolina: With Notes and Decisions to 1884"

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HARVARD LAW SCHOOL 
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Entered according to Act of Congress, in the year 1884, 

By WALTER CLARK, 
In the Office of the Librarian of Congress at Washington. 



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DEDICATION. 



TO 

HON. W. N. H. SMITH, CHIEF JUSTICE, 

AND THE 

HONS. THOS. S ASHE AND AUG. S. MERRIMON, JUSTICES, 

OF THE 

SUPREME COURT OF NORTE CAROLIM, 

THIS COMPILATION OF THE DECISIONS OF THE COURT 
UPON THE CODE OF CIVIL PROCEDURE IS 

BESPECTFULLT DEDICATED, 

WITH ADMIRATION OF THE LABOR AND ABILITY WITH 

WHICH THEY ARE LAYING BROAD AND DEEP 

THE FOUNDATIONS OF THE NEW AND 

SIMPLER CODE OF PRACTICE. 

THE AUTHOR. 



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PREFACE. 



To THE Profession: 

This work lays claim to no originality. It had its origin 
in the necessities of the writer for a ready reference to the 
adjudications of our court of last resort on questions of 
practice. These adjudications were necessarily numerous, 
as they are constructions placed by the court upon an en- 
tirely new system of procedure, laying down the succes- 
sive steps taken and the lines upon which future progress 
is to be made. They are scattered through twenty-six 
volumes of reports, and not accessible without much re- 
search. 

This volume, therefore, is intended as a working tool, a 
LABOR-SAVER to a hard working profession. If it has the 
effect of lightening their labors, the compiler will feel 
repaid. He will also feel that he has, in his humble way, 
paid that debt which Lord Bacon' says that every lawyer 
owes his profession. 

That there are typographical errors in the work was 
hardly to be entirely avoided, considering the large number 
of names and figures used. They have been numerous 
enough to vex the writer, but it is trusted that the ready 
intelligence of the practicing lawyer will in no instance be 
mislead by them. That there are omissions and errors of 
a more serious nature, it is probable that the use of the 



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VI PREFACE. 

work may discover. Labor has not been stinted to make 
the work complete and accurate, and where there are short- 
comings, not " of form, but substance," reliance is placed 
upon the forbearance and charity of the Profession. 

WALTER CLARK. 
Raleigh, N. C, Feb. 20, 1884. 



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Cases Cited. 



PAGB. 

Abbott y. Cromartie, 73—292 S95, 299, 30s 

Abrams v. Cureton, 74 — 523 1 1, 40, 43, 56 

Abrams v. Pender, Bus., 260 298 

Achenbach, Boyden v., 79 — 539 25, 80, 91 

Adams, Bell v., 82— -ii8 48 

Adams, Boner v., 65—- 639 ; 400, 401 

Adams, Ladd v., 66—164 ^99 

Adams, Perry v., 83 — 266 126, 334 

Adams v. Quinn, 74 — 359 90, 92, 118 

Adams v. Reeves, 74 — 106 337f 339» 34^, 343 

Adams v. Reeves, 76 — ^412 127, 133 

Adams V. Utley. 87— 356 112 

Adderton, Russell v.^ 64 — 417 99 

Addington, Commissioners v., 68—254 355 

Addington, Hurst v., 84—143 91, 105, 207 

Adkinson v. Simmons, 11 Ire., 416 378 

Adrian v. Jackson, 75 — 536 319, 411 

Adrian, Hinson v., 86—61 4^ 

Adrian v. Scanlin. 77 — 317 150 

Adrian v. Shaw, 82 — ^474 300 

Adrian v. Shaw. 84—832 300i 34ii 345 

Albright V. Mitchell, 70—445 211 

Alexander, Bank v., 84 — 30 218, 221 

Alexander v. Commissioners, 67 — 330 55i ¥^ 

Alexander, Davidson v., 84—621 203, 359, 360 

Alexander, Foard v., 64—69 93, 164, 169, 172, 173, 380, 381, 383 

Alexander v. Robinson, 85 — 275 2og, 335 

Alexander, Scroggs v., 88—64 • 3^8 

Alexander v. Smoot, 13 Ire., 461 37^ 

Alexander, Torrence v., 85 — 143 23, 26 

Alexander, Winslow v., 2 D. & B., 9 128, 132 

Alexander v. Winston, 81 — 191 39 

Alexander v. Wolfe. 83 — 272 90 

Alexander v. Wriston, 81 — 191 43 

Allemong V. Allison, i Hawks, 325 262 

Allen V. Baker, 86—91 $'• 212 

Allen, Carrington v.. 87 — 354 211 

Allen, Clerk's Office v., 7 Jones, 156 287, 290 

Allen, Dorsey v., 85—358 169 

Allen v. Gilkey, 86—64 37^ 

Allen, Powell v., 75 — 450 93 

Allen V. Shields, 72—504 45f 69, 308 

Allen, Shields v., 77—375 ^ 

Allen, State v., 3 Jones, 257 224 

Allison, Allemong v., i Hawks, 325 262 

Allison, Barringer v., 78 — 79 24 

Allison, Campbellv., 63— 568 337. 339 

Allison, Rankin v., 64—673 39, 43, 55. 57. i", 2<» 

Allison, Skillington v., 2 Hawks, 347 ^ 34 

Allmann, Morrow v., 65 — 508 3^5 



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VIII CASES CITED. 



PAGE. 

Alphin, State v., 81—566 220» 358 

Alsbrook v. Reid, 89 — 140 

Alsbrook v. Shields, 67 — 333 I57 

Alspaugh V. Winstead, 79 — 526 112 

Anderson, Kahnweiler v., 78 — 133 13, 28 

Anderson, Osborne v., 89—261 408 

Andrews V. McDaniel, 68 — 385 40, 374 

Andrews V. Pritchett, 65 — 103 139 

Andrews v. Pritchett, 66^387 64, 84, 209, 212 

Andrews v. Pritchett, 72 — 135 304, 309 

Andrews v. Whisnant, 83 — 446 3^7 

Angel, Honeycutt v. 4 D. & B., 306 4" 

Angell, State v., 7 Ire., 27 223 

Anon, I Hay, 469 329 

Applewhite v. Fort, 85 — 596 ^ 339 

Arendell, Harker v., 74—85 163 

Arentz, Wilson v., 70—670 39,42,49,88,92 

Arey v. Stephenson, 12 Ire., 34 221 

Arledge, Ledbetter, 8 Jon., 475 262 

Armfield v. Brown. 70 — 27 209, 212, 219, 228, 231, 234, 237, 238, 340, 390 

Armour v. White, 2 Hay., 69 15 

Armstrong, Pegram v., 82 — 326 68, 138 

Armstrong V. W right, i Hawks, 93 215, 331 

Amokl, Dougan v., 4 Dev., 99 327 

Arrinf^ton, Collier, v., Phil., 356 51 

Arrington V. Sledge, 2 Dev., 354 263 

Arrington, State v., 3 Mur., 571 411 

Asbury v. McDowell, 66 — ^444 149, 380, 383 

Ashcraft v. Lee, 79 — 34 332 

Ashcraft v. Lee, 81—135 332 

Ashe V. Gray, 88 — 190 ii, 86, 90 

Ashe V. Moore, 2 Mur., 483 203,383 

Ashworth, Bums v.. 72 — 496 48,89, 95, ill 

Askew, Bender v., 3 Dev., 149 132 

Askew, Blake v., 76—325 ii 

Askew V. Bynum, 8i — 350 54 

Askew V. Capeheart, 79 — 17 127, 128, 380, 381 

Askew, Moore v., 85 — 199 332 

Askew ,^utton v., 66 — 172 288 

Atkinson v. Smith, 89 — 72 201 

Atkinson v. Whitehead, 77 — ^418 231, 234 

Atkinson, Wilmington v., 88—54 358 

Attorney general V. Roanoke Nav. Co., 84 — 705 167 

Austin V. Clark, 70—458 128, 215 

Austin V. Dawson, 75 — 523 12, 25 

Austin, Moore v., 85 — 179 330 

Austin V. Rodman, i Hawks, 71 132 

Austin, State v., 79—624 221, 226 

Averett, Duflfy v., 5 Ire., 455 76 

Avery, Meroney v.. 64 — 312 376 

Avery, Morris v., Phil., 238 I2 

Avery v. Rose, 4 Dev., 549 267, 268 

Avery, Western R. R. Co. v., 64 — ^491 25 

Aycock V. Harrison, 65 — 8 261 

Aycock V. Harrison, 71 — 432 51, 255, 383 

Bachelor v. Macon, 67 — 181 47 

Backalan V. Littlefield, 64—233 177, 178, 184, 185 

Backhouse, Grist v., 4 D. & B., 164 

Bacon v. Berry, 85 — 124 24 



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CASES CITED. ^ iX 

PAGB, 

Badger V. Daniel. 77 — 251 76 

Badger v. Daniel. 79 — 372 12 

Badger v. Daniel, 82 — 468 ^- 327, 336 

Badger v. Jones, 66 — 305 8 

Badham v. Cox, ii Ire., 456 265 

Badham v. Jone.% 64 — 655 274 

Badham, Skinner v., 80—14 354 

Badham, Thompson v., 70—141 51 j 

Baer, Gashine v., 64—108..* 180 

Bagby, Dunn v., 88—91 * 276 | 

Baggarly v. Calvert, 70 — 688. .w w 5t 

BahnsoD V. Chesebro, 77 — 325 ...^ 145,146 

Baird v. Baird, Phil. Eq.. 317 76 

Baird, Cowan v., 77 — 201.* *.. *---84, 105, 124,207 ' 

Baird, Gudger v.. 66—438...* 50. 88, 91, 231, 236, 237, 242 ' 

Baily v. Pool, 13 Ire., 404 226 ' 

Baker, Allen v., 86—81 51. 2t2 t 

Baker, Freshwater v., 7 Jones, 255 ■ 34 

Baker V. Halstead, Bus.. 41 3«5. 3^7 

Baker, Kerchner v., 82 — 169 I30, 131 

Baker, Lilly v., 88—151 >. 121, 126 

Baker V. McDonald, 2 Jones, 244 ^ 15 ' 

Baker v. Monroe, 4 Dev., 412 „ * 407 1 

Baker. Morrison v.. 81 — 76 235, 236, 334 i 

Baker. Tucker v,, 86—1 91, 94, 95, 384 

Baldwin V. York, 71 — 463 85,171,207,248 ' 

Ballard v. Ballard, 75 — 190 373, 375 | 

Ballard v. Kilpatrick, 71 — 281 140 

Ballard, Merwin v., 65 — 168 6, 49, 85, 88, 123 ■ 

Ballard. Mcrvin v., 66—398 .* 85 • 

Ballard, State v., 79 — 627 2ao, 342 1 

Ballard v. Walker. 7 Jon., 84 298 I 

Ballentinev. Poyner, 2 Hay., 268 ^ 404 

Bank v. Alexander, 84—30 I18, 22t I 

Bank, Bates v., (65— 81 250 ! 

Bank v. Blossom, 89 — 341 336 

Bank v. Bogle, 85—203 ^i, 94 ] 

Bankv. Britton, 66— 365 85 ] 

Bank'v. Bynum, 84 — 24 40, 41, 98. 99. io2 

Bank. Chalk v.. 87— 20c 233 , 

Bank v. Charlotte, 75—45 - 97i 104. I2u, 207 

Bank v. Creditors, 80 — 9 125, 353 

Bank v. Creditors, 86 — 323 201 | 

Bank, Clerk's office v., 66 — 214 29O ; 

Bank v. Foote, 77—131 128 ! 

Bank, Glenn v., 72 — 626 87 ] 

Bank, Glenn v., 80 — 97 125 " 

Bank v. Graham, 82 — 481 .* * 34t 

Bank v. Green, 78 — 247 295, 301 

Bank v. Harris. 84 — 2o6 88. 90, 92, 118 

Bankv. Hart, 67 — 264 lOl 

Bank v. Hutchison, 87 — 22 it3 

Bank v. Jenkins, 64 — 719 33t 

Bank. Justice v., 83—8 365 

Banks, Keaton v., 10 Ire., 381 132 

Bank, Long v., 81—41 13. 4^. 33* 

Bank, Long v., 85—354 408 

Bank. Oldham v., 84 — 304 * 198 

Bank, Oldham v., 85—241 98 



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CASES CITED. 



PAGE. 

Bank, Perry v., 70 — 309 285 

Bank V. Pinkers, 83 — 377 334 

Bank, Rand v., 77—152, 203 

Bank v. Spurling, 7 Jon., 398 195 

Bankv. Stafford, 2 Jon., 68 274 

BankT. Tiddy, 67—109 loi, 331, 333, 336 

Bank, Wilson v., 72—621 88 

Bank v. Wilson, 80—200 74. 76, 382 

Bank, Yarborough v., 2 Dev., 23 263, 264 

Banks, Parkerv., 79 — 480 15, 16, 23 

Banks v. Parker, 80—157 169 

Bannister, McAden v., 6p — 478 108, no, in, 229, 230, 250, 259 

Barbee v. Green, 86^158 loo 

Barefoot, Bynum v., 75 — 576 .-254 

Barfield, State v., 8 Ire., 344 59 

Barham v. Lomax, 73—76 ^.12, 28, 210 

Barham v. Massey, 5 Ire., 192 265 

Barham, Stell v., 85—88 347 

Barham, Stell v., 86 — 727 326, 328 

Barlow v. Norfleet, 72 — 535 225, 318 

Barnard v. Johnston, 78—25 353 

Barnes v. Brown, 79 — 401 8 

Barnes, Dickens v., 79 — 490 17 

Barnes, Dunn v., 73—273 81, 84, 85, 105, 124, 203, 205, 207 

Barnes v. Hyatt, 87 — ^315 260 

Bamhart, Phifer v., 88 — 333 164 

Barnes v. Piedmont Insurance Company, 74 — 22 93 

Bamhardt, Kirk v., 74—653 344. 375 

Bamhart v. Smith, 86—473 106. lo? 

Bamhill, Wilson v., 64 — 121 143, 146, 154, 180 

Barrett v. Brown, 86 — 556 48 

Barrett, Harden v., 6 Jon., 159 15 

Barrett v. Henry, 85—321 231, 232, 335. 343 

Barrett v. Richardson, 76 — 429 295, 299 

Barrett, Worthy v., 63 — 199 .' 402 

Barringer V. Allison, 78 — 79 24 

Barringer v. Barringer, 69—179 370 

Barry v. Sinclair, Phil. 7 .-186 

Barton ex parU^ 70^134 '.327 

Baskerville, Finch v.. 85 — 205 83, 86, 90, 94, 118, 119. 124 

Bason v. Berry, 85 — 124 ^ 13 

Bass V. Bass, 78 — 374 45, 67 

Batchelor, Brodie v., 75 — 51 301 

Bates V. Bank, 65—81 250 

Bates V. Lilly, 65 — 232 53. 358 

Battle V Davis, 66 — 252 39, 43. 200 

Battle, Harrison v., i Dev. Eq.. 541 265 

Battle V. Mclver. 68 — 467 394 

Battle V. Petway, 5 Ire., 576 255, 266 

Battle, R. R. Co. v., 66— 540 170 

Battle V. Rorke, i Dev., 228 321 

Battle, Scott v., 85 — 184 98, 103, 276, 278 

Battle v. Thompson, 65 — 406 loi 

Batts V. Winstead, 77 — 238 : 12, 28 

Baurman, Richards v., 65 — 162 173, 199 

Baxter v. Baxter, 77 — 118 158, 167 

Bayne v. Jenkins, 66^356 402 

Beach, Woodfin v., 70—455 175 

Beaman, Lee v. , 73 — ^410 107 



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CASES CITED. XI 



PAGE. 

Beaman, White v., 85 — 3 12, 36 

Bearv. Cohen. 65—511 .46. 53, no, 153, 162, 174, 193, 194, 196 

Bear, London v.. 84 — 266 19 

Beard V. Hall. 79 — 506 47. 241 

Beard. Lord v., 79^5 380 

Beardsley. Straus v., 79 — 59 34, 229, 341 

Beasley, Williams v., 13 Ire., 118 356 

Beatty, Caldwell v. , 69 — 142 329 

Beatty, Heyerv., 76—28 96, 127, 356 

Beatty, Land Company v.. 69 — 329 80, 90, 118, I20 

Beavan V. Speed. 74 — 544 295 

Becknall, Neal v., 85—299 210, 231 

Beckwith v. Mining Company. 87 — 155 263 

Beeman, Myers v.. 9 Ire.. ii6 i88 

Bell V. Adams. 81— 118 48 

Bell V. Chadwick. 71 — 329 171 

Bell V. Cunningham, 81 — 83 255 

Bell, Cunningham v., 83—238 168 

Bell, Grant v., 87 — 34 39. 200, 211, 218 

Bell, Johnson v., 74—355 97. loi. 333 

Bell V. King, 70 — 330 8 

Bell. Lockhart v.. 86—443 374 

Bell, Thomegeux v., Mart.. 44 —37^ 

Bell, Watts v.. 71—405 333 

Bellamy. Gorman v.. 82 — ^496 79, 135 

Bellamy V. Pippin, 74 — 46 : 336 

Belmont v. Reilley. 71 — 260 10, 399. 400 

Belo V. Spach, 85—122 -..-23. 36 

Benbow. McAdoo v., 63—461 w 9, 61, 108 

Benbow v. Robbins, 71 — ^338 12, 19 

Benbow V. Robbins, 72 — 422 228 

Bender v. Askew, 3 Dev., 149 132 

Benedict V. Hall, 76—113 114. I47 

Bennett. Cmmmen v.. 68 — 194 299. 300. 302. 305 

Benson. Linker v., 67 — 150 17, 365 

Benton, Britt v., 79—177 231 

Bergen, Lyttle v., 82—301 47 

Bemheim v. Waring. 79 — 56 232 

Berry. Bason v.. 85—124 I3, 24 

Berry. Corbin v., 83—27 165, 198, 291, 334, 341 

Berry, Thompson v.. 64—79 i^i. 259, 386, 390 

Berryhill, Hoover v., 84—182 87, 88, 90 

Berryman v. Kelly, 13 Ire.. 269 15 

Best V. Clyde, 86 — ^4 105, n6, 335 

Best V. Frederick, 84 — 176 211 

Bettis, McAfee v., 72—28 296, 308 

Betts V. Franklin, 4 D. &B., 465 327 

Bcvers V. Park. 88 — 456 26 

Bibb. Foreman v.. 65—128 141. 380 

BidwcUv. King, 81—287. 56 

B^^gs V. BrickeTl, 68 — 239 267 

Biggs, Capehart v., 77—261 170 

Biggs V. Williams, 66—427 39. 43. 200 

Bingham V. Richardson. Phil., 315 - 390 

BirSUcy V. Harris, 68—92 134, 330, 382 

Bishop, Lee v., 89—257 249, 250 

Bitting V. Thaxton, 72—541 10, 79, 97, loi 

Black, Brink v., 77—59 225, 227 

Blackbtum v. Bowman, i Jon., 441 362 



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XII CASES CITED. 



PAGE. 

Plackbarn, Commissioners r., 68 — ^406 , . , ,, ., io9 

Blackburn, State v., 80—474. .327 

Blackledge, Murray v., 71 — 492 .41, 374 

BlackBiock V. Cole, 6 Jon., 560 ».,...,,. 15 

Blackwell v. Clavwell, 75 — 213 »....,.... .^ 

Blackwell, McElwee v., 85 — 415 ,,,.. , jio 

Blackwell v. Willard, 65 — 555 ,...,. J97 

Blackwell v. Wright, 74 — 733 .427 

Blair, Commissioners v., 76 — 136 , . . ....... 122. 125 

Blair V, Purye^r, 87— loi , ..185,195 

Blair, State v., 76—78 , 46 

Blake y, Askew, 76—325 /. . * H 

Blake v. Respasss, * 77 — 193 137, 284 

Blakely v. Patrick, 67—40 157 

Bland V. O'Hagan, 64—471 *...335« 341 

Bland, Sheppard v., 87 — 163 241. 247, 263. 353 

Bland, Skinner v., 87—168 , 133* 388 

Bland V. Warren,. 65 — 372. ......,.., ,.,.,...,....,,, ,378 

Blankenship v. Hunt, 76 — 377 ; , , .40 

Bjedsoe v. Nixon, 69—81 127, 222, 346, 349, 35P 

Bledsoe, Parker v., 87—221 , 132, 169, 241. 381 

Bledsoe, Pool v., 85 — i , . ,,.,.. .36 

BUdsoe V. Snow, 3 Jon., 99 , .^325, 329 

BlWsoe, Welker v., 68—457 39S 

B)ick, Browne v., 3 Murph., 511 ....404, 405 

BJoodworth, Cumming v., 87 — 83. . ^ , 301. 

BlossQm, Bank v., 89 — 341 » » • » . 1 33^ 

Blount, Mann v., 65 — 90 , ,.,.,,..,*..«...*...,*...,.. IQI 

Blount V. Parker, 78—128 .2^ 

Blount, Ricks v., 4 Dev,, 128 , . i . . .263 

Blount, Tredwell v., 86 — 33 . . .40, 41, 9$ 

Blount V. Windley, 68 — i , , .....IPI 

Blovnt, University v., Term 13 ^ . . 15 

Blue V. Blue, 79—69 129, 132, 204, 330 

Blue V. Gilchrist, 84—239 12, 32, 367 

Blum V. Ellis, 73 — 293. ,..,,..,,.. , , }-....: 256 

Blum, Sledge v., 63—374 .172. 173, 175, 330. 404. 

Bobbitt. Jenkins v., 77 — 385 .295, 296 

Boddie v. Woodard. 83 — 2..,,, , 64, 65, 334 

Bodenhc^mer, Flynt v., 80^205 M3 

Bodenh^mer v. Welch, 89 — 78. , .4Qf 

Bogle, Bank v., 85—203 , 91, 94 

Bogey V. Shute, i Jon. Eq., 180 405 

Boing y. Railroad, 88—62. , , .131, 339 

Bond V. Bond, 69—97 294, 332 

Boner v, Adam.s, 65—639 , ... ^ .... . .409, 401 

Boner. Spaugh v., 85—208 334, 337. 355 

Bonham v. Craig, 80—224 120 

Boon, State v., 82—637 2i8, 82$ * 

Boone v. Hardie, 83 — 470 104, 2P7 

Boone, Hughes v., 81 — 204 48, 239 

Bposhee v. Surles, 85 — 90 , . , . , 66 

Bosher, Palmer v., 71-291 108, i8q, J83, 185, 193 

Bosher, Palmer v., 72 — 371 ,...., ,........>... 193 

Bost V. Bost^ 87—477 -.p22I, 341 

Bostick, Durham v., 72 — 353,,,,-,,,,, , ,.-.82, 95, jof 

Bowden, Faison v,, 74 — 43 -^ 12, 3O 

Bowden, Faison v. , . 76—425 -,,.-..,, ,, ,..,^,-,.,,^36 

Bowles, Gray v., I D. & B., 437 270 



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CASES CITED. XIII 



PAGE. 

Bowman, Blackburn v., i Jones, 441 361 

Boyd, Jones v.. 80—258 175, 2tl8, 237, 335, 353, 354 

Boyden v. Achenbach, 79 — 539 25, 80, 91 

Boyden, Pearson v., 86---585 86 

Boyden v. Williams, 80 — 95 134 

Boyden v. Williams, 84—608 >. 58 

Boyett V. Vaughan, 79 — 528 97, 98, 99, 106 

Boyett V. Vaughan, 85 — 363 98. 99, 106 

Boyett V. Vaughan, 86 — 725 354 

Boykin v. Boykin, 70—262 370 

Boyle Vi. Robbins, 71—130 , :40 

Bradford v. Coit, 77 — 72 >. 129 

Bradley v. Jones. 76—204 345, 413 

Bradway, Windley v., 77 — 333 :70, 179 

Braml|s(t. Hancock v., 85 — 393 346. 352 

Branch, £x parte^ 72^-106 ._ 295 

Branch V. Frank, 81 — 180 70, 180 

Branch v. Goddin, 60 — ^497 , 44 

Branch v. Housjton, Bus., 85 96 

Branch, Keathley v., 84 — 202 : :47 

Branch. Keathley v., 88—379 J^St ^04, 122 

Branch v. Railroad, 77 — 347 384 

Branch ▼. Railroad, 88 — 573. 340 

Brandon, Paschal v., 79 — 504 47 

Brandon v. Phelps, 77 — ^44 210 

Branson v. Fentress, 13 Ire., 165 365 

Brantley, State v., 63—518 , 225 

Brassfield v. Whitaker. 4 Hawks. 309 - 264 

Bra$w«ll, Knight v., 70 — 709 ii, i2, 23, a© 

Bmtton V. Davidson, 79 — 423 68 

Bray, Scate v.. 89 — 480 .'...411 

Brem, Walker v., 76 — 407 --.166, 168 

Brendld v. Herron, 68-<^496 ^ 64, 66, 108 

Brickell, Biggs v., 68 — 239 i. 267 

Briggs v> Smith, 83—306 12, 25, 28, 32, 42, 2it 

Briggs, Stockton v., 5 Jones Eq., 309 128 

Bright V. Hemphill, 81 — 33 220 

Bright v. Sugg, 4 Dev., 492 13S. 341 

Bright V. Wilson, Conf., 24 404, 406 

Brigman v. Jarvis, 8 Ire., 451 320 

Briley, Kehd^llv., 86—56 22 

Brink V. Black, 77—59 225, 227 

Brink, Penny v., 75 — 68 369, 371 

Britt V. Benton, 79—177 «3i 

Britt V. Patterson, 9 Ire., 197 .1.-329 

BrittaiQ. Bmwn v., 84—552,. -.. 98, 103,356 

Brittain v. Howell, 2 D. & B., 107 65 

Brittain, Statev., 89-^81 411, 4(2 

Britton, Bank v.. 66 — ^365 185 

Brlttoa y. Davidson, 79-^23 138 

Brodie v. Batchelor, 75—5 1 SO! 

Brodni^x v. Groom, 64 — 244. .^ ll 333 

Brodnax* Strudwick v., 83 — 401 366, 368, 369 

Brogdenv. Henry, 83^-274. - 197, I05. 207, 334 

BlroBson V. Insurance Company, 85 — 411 49, 88, 123. 124, 284, 290 

Brooks, Fox v., 88 — 234 301 

Brooks V. Headen, 80—11 49, 353 

Brooks, Lee v., 4 Jones, 423 316, 355 

Brooks V. Morgan, 5 Ire., 481 325 



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XIV CASES CITED^ 



FAGK^ 

Brooks V. Radcliffe, ii Ire. 321 267, 265 

Brooksbire, Gay r., 82—409 332. 334. 

BroughtOD, Pepperv., 80-— 251 - , 37» 

Broughton, Symev., 84 — 114 325. 375 

Brower, Hill v., 76 — 124 ; 277 

Brower v. Hughes, 64 — 642 375 

Brower, Taylor t., 78—8 337. 339. 34S 

Brown, Aimfieldv., 70-^27 207, 212, 219, 228, 231, 234. 237, 238, 340 

Brown, Barnes v., 79 — ^401 & 

Brown, Barrett v., 86 — 556 4S 

Brown v. Blick, 3 Mnrph., 511 404, 40s 

Brown t. Brittain, 84—552 98, 103,356 

Brown, Bramble v., 71 — 513 236, 341 

Brown, Campbell v., 86—376 32, 36 

Brown Y. Cooper, 85—477 211, 367, 377, 409 

Brown, Doyle v., 72 — 393 131 

Brown t. Fonst, 64 — 672. - 2©3 

Brown v. Graves, 4 Hawks, 342 265 

Brown y. Hawkins, 65 — 645 124, 127. 18©, 194, 196 

Brower, Hess v., 76—428 180 

Brown v. Hoover, 77 — ^40 - 297 

Brown, Isler v., 66 — 556 76 

Brown, Isler v., 69—125 « 133, 382 

Brown, Mitchell v., 88 — 156 - ^ n6, 218, 221 

Brown v. Morris, 83 — 251 ^. 80, 121 

Brown, Norment v., 79 — 363 - _. 236 

Brown v. Potter, Bus., 461 15 

Brown V. Railroad, 83 — 128 16$ 

Brown, Roulhac t,, 87—1 146, 148. 153. 332, 381 

Brown v. Smith, 8 Jones, 331 272 

Brown v. Turner, 70—93 40, 390, 393, 394, 399, 402 

Brown v. Williams, 83—684 324. ^39 

Brown v. Williams, 84-116 , 327» 32^ 

Browning, State v., 78—555 224 

Broyles v. Young, 81 — 315 23, 24, 255, 256 

Brace v. Strickland, 81 — 267 307 

Braden, Malloy v., 86 — 251 15, 16, 19 

Braffv. Stern, 81—183 114. 180, 194, 196 

Bramble v. Brown, 71 — 513 236, 341 

Braner V. Threadgill, 88 — 361 12 

Bryantv. Fisher, 85—71 95. I32» 211, 342, 343, 382 

Bryant, Harris v., 83 — 568 49 

Bryan v. Harrison, 76—360 -.217 

Bryan, Haywood v., 63 — 521 112 

Bryan v. Heck, 67—322 331 

Bryan v. Hubbs, 69—423 109, 168, 249, 253, 257, 258, 260, 262, 337, 345, 

35i» 352 

Bryan, JoUv v.. 86—457 18, 26, 318 

Bryan, Miller v., 86—167 237 

Bryantv. Morris. 69—444 374, 375 

Bryson, Poteet v., 7 Ire., 337 271 

Bryan, Street v., 65—619 99. 335 

Bryan, Walston v.. 64—764 134, 284 

Bryan, Winbume v., 73 — ^47 221, 333, 336 

Bryan, Worsley v., 86—343 248,863 

Bryce, Skinner v., 75 — 287 129 

Bryson v. Lucas, 85 — 397 351 

Bryson, Shulen v., 65 — 201 187 

Bryson V. Slagle, Bus., 449 15 



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CASES CITED. XV 



PAGE. 

Bnclnnmn, Jadkson y., 89 — 74 159 

Buchanan, Wilkecson v., 83 — 096 --'S^y, 377 

Buchanan, Williams v., i Ire., 535 ^ 15 

Buck, Williamson V,, So — ^308 ^.^ ^ 156 

Buckman v. Com'rs, Social 401 

Bute V. Buikiing & Loan Associatioo, 74 — 117 89 

Buie V, Carver, 75 — 559 ^ 41* 

Buie, Howell v,, 64 — ^446 ^.. I2 

Building & Loan Associatioa, Buie v,, 74 — 117 89 

Bullard V. Johnston, 6$ — 436 « 125 

Sullard, Larkias v., 88 — 35 13a 

Bullard, McI«eod v., 64 — 515 365 

Bullard, McLeod v., 86—210 226 

Bullard v. Walker. 7 Jones, 84 298 

Bullinger V, Marshall, 70—520 10 

Bullock, Paschall v., So— 329 134, 381 

BuIIinger, Perkins v., i Hay., 42c 264 

Bullock, Sneed v., 77—282 381, 393 

Bullock, State v., 63—570 «. 336 

Bumpass v. Chambers, 77 — ^357 93 

Bunting, Morgan v., 86—66 3i67, 374 

Bunting v. Stancal, 79 — 180... ^ 9 

Bunting, Syme v., 86—175 50, 90, 118, 231 

Burgin V. Burgin, i Ire., 160 265 

Burgin, Lytle v.,.82 — ^301 53 

Burgwyn, Grant v., 79 — 513 178 

Burgwyn, Grant v., 84— 560 36,80 

Burgwyn, Grant v., 88—95 121, 113. 124, 125 

Burgwyn, Jacobs v., 63—196 13^,229,230,241,340 

Burke V. Stokely. 65—569... 130, 131, 169, 241, 380 

Burke V. Turner, 85 — 500 M9. 230, 231, 335 

Burke V. Turner, 89—246 235 

Burnett v. Nicholson, 79 — 548 ,.I73 

Burnett v, Nicholson, 86—728 349, 354 

Bumey, Shaw v,, 86—331 36 

Bumsv. Ashworth, 72—496 48,89,95,118 

Bums V. Harris, 67 — 140 305 

Bums V. Williams, 88 — 159 80 

Burroughs v. McNeill, 2 D. & B, Eq., 297 96 

Burroughs, Welling v., 8 Ire. Eq., 61 406 

Burton v. March, 6 Jones, 409 225 

Burton v. Railroad, 82 — 504 221, 342 

Burton v. Railroad, 84 — 192 221, 353 

Burton t. Railroad, 84 — 192 353 

Burton V. Spiers, 87 — 87 300, 302, 303, 307 

Burton V. Wilkes, 66 — 604 loi, 218 

Burton, Winfield v., 79—388 53 

Burwellv. Lafferty, 76—383 71. 181 

Burwell, Harris v.. 65— 584 41, 98, 99 

Busbee v. Lewis, 85—332 86 

Busbee v. Macey, 85—329 86 

Bosh, Dodsonv., i Car. L. R., 236 195 

Bush, Ely v., 89 — 358 407 

Bushee V. Surles, 77—62 27,376 

Busheev. Surles, 79—51 «38, 333 

Butler, Koonce v., 84 — 221 132 

Butler, McDowell v., 3 Jones Eq., 311 50 

Butler V. Stainback, 87 — 2i6 300 

Byers, Carleton v., 71 — 331 350 



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XVI CASES CITED. 



PAGE, 

Bynum, Askew r., 8i — 350 54 

ftynum, Bank v.. 84—24 4<^ 41." 9^* 99. 10^ 

Bynum v. Barefoot, 75 — 576 254 

Bynum v. Bynum, 11 Ire., 632 *^ 221, 226, 342 

^ynum v. Carter, 4 Ire., 310 ---*.-.*-...- 15 

Bynum v. Thompson, 3 Ire., 578 - IS 

Cagle, Grierv., 87—377 37^ 

Cain V. Nicholson, 77 — ^411 233, 235. 238 

Cain, State v., 2 Jon., 201 - 825 

Caldwell V. Beatty, 69 — 142 ** -*.- ^--32^ 

Caldwell, Douglass v., 64 — 372 - 210, 235 

Caldwell, Maxwell v., 72 — 450 w S35 

Caldwell, McConnell v., 6 Jon., 469 ^ *...i.-w 32$ 

Call, Jonesv., 89—188 - 336, 412 

Calloway, Miazza v., 74 — 31 * 66 

Calloway, Privett v., 75 — 233 - 13 

Calvert, Baggerly v., 70—688 ^-.*-.* 51 

Calvert v. Peebles, 82—334 - 61, 38I 

Calvert v. Williams, 64 — 168 '. * 4* 

Cameron, Jones v., 81 — 154 .--^.-* 164 

Cameron, Phillips v., 3 Jon., 390 - 13 

Camp v. Coxe, i D. & B., 52 264 

Campbell v. Allison. 63—568 337. 339 

Campbell v. Brown, 86—376 .:* 32, 36 

Campbell v. McArthur, 2 Hawks, 33 1$ 

Campbell v. Wolfenden, 74 — 103 *..a*.-- 167 

Canal Co., Williamson v, 78—156 ..221, 230» 341, 341 

Canal Co., Williamson v., 84—629 36* 

Candler, Netherlon ▼,, 78—88 93. 124 

Candler, Sumner v., 74—265 66 

Cannon. Henry v., 86—24 - 1^5. 128, 335 

Candler, Sumner v.. 86 — 71 374. 37^ 

Cannon v. Morris, 81 — 139 12, 218, 367 

Cannon v. tarker,8i— 320 - 23, 134. 248, 33^ 

Cape Fear v. Williamson, 2 Ire., 147 * — --- 66 

Capehart, Askew v., 79—17 ^...127. 128, 380, 38I 

Capehart, Hyman v., 79 — 511 130 

Capehart v. Biggs, 77 — 261 .*.-.-.. ...170 

Capehart v. Mhoon, Bus. Eq., 30 ^ -- 175 

Capehart, Raynerv., 2 Hawks., 375 *-... 15 

dapell v. Long, 84 — 17 - * - 26 

Capel v. Peebles, 80 — 90 -....- - -333 

Capps v. Capps, 85 — 408 - -86, 11 1 ■ 

Cardwell v. Cardw'ell, 64—621 - .335. 34S 

Carland, Jones v., 2 Jon. Eq., 502 * 276 

Carleton v. Byers, 71 — 331 -..-- 35O 

Carleton v. Sloan, 64 — 702 -^ ^-.^ 149 

Carleton v. Watts, 82 — 212 295,298.999,304 

Carmerv. Evers, 80—55. 185. 192, 355 

Carmichael v. Moore, 88 — 29 39 

Carney v. Whitehurst, 64 — 426 * ^ — -- 46 

Carpenter, Hawkins v., 85—482 ..-..._ -.--372. 374 

Carpenter v. HufiFsteller, 87—273 I2I, 123, 124, 242 

c arr v. Carr, 4 D. & B., 189 w 405 

Carr, Patrick v., 60 — 633 - - 274 

Carr. State v., 71 — io6 -^ 3^5. 307 

Carrington v. Allen, 87 — 354 ' .^ 211 

Carroll v. Haywood, 64 — 481 *.*..** ...-. 333 

Carson v. Com'rs, 64 — 566 **...*...*.--...- 403 



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CASES CITED. XVII 



PAGE. 

Carson, Halyburton v., 80—16 241 

Carson v. Mills, 69-^122 117 

Carson V. Gates, 64 — 115 284 

Carter, Bynum v., 4 Ire., 310 15 

Carter, Hull v., 83 — 249 97, 102. 104, 207. 212, 334 

Carter, Jerkins v. , 70 — 500 , 8 

Carter, Mayers v. , 87 — 142 267 

Carter V. W. N. C. R. R., 68—346 57, 59 

Carver, Buiev., 75 — 559 41 

Carver, Sedberry v., 77 — 319 149, 150 

Cash, Curtis v., 84 — 41 ^ 211, 334 

Castleberry, Green v., 70—20 209, 213, 230, 233, 234, 236, 337 

Castlebcrry, Green v., 77 — 164 .236, 237 

Cauble, State v., 70—62 127 

Caveness, Stale v., 78 — 484 218, 220 

Cecil V. Smith. 81—285 47, 52 

Cedar Falls Co. v. Wallace, 83 — 225 210, 211 

Chadboume, McNeill v., 79—149 340, 342 

Chadwick, Bell v., 71 — 329 171 

Chalk v. Bank, 87—200 233 

Chambers, Bumpass v., 77 — 357 93 

Chambers, Dobson v., 78 — 334 126, 333 

Chambers, McConnaughey v., 64 — 284 41, 198 

Chambers v. Penland, 74 — 340 302 

Chambers V, Penland, 78 — 53 45, 69, 164, 165, 380, 381 

Chamberlain v. Robertson, 7 Jones, 12. 90 

Chambersv. Smith, i Hay., 366 325 

Chamness, Lamb v., 84 — 379 297 

Chapman, Swepson v., 63 — 130 86 

Chappell, Harrison v., 84 — 258 335 

Charles v. Kennedy, 64 — 442 91 

Charlotte, Bank v., 75 — 45 97, 104, 120, 207 

Charlotte & S. C. R. R. Co., Graham v., 64—631 , iii 

Charlton v. Lowry, Mart., 25 379 

Chastain v. Chastain, 87—283 327, 328, 344, 351, 352 

Chastain v. Martin, 79 — ^453 228 

Chastain v. Martin, 81 — 51 207, 213, 228 

Chasteen, Martin v., 75—96 346, 347 

Chasteen v. Martin, 84 — 391 341 

Cheatham v. Crews, 81 — 343 62, 125 

Cheatham v. Jones, 68 — 153 296 

Cherry v. Hooper, 8 Jones, 82 188 

Cherry v. Nelson, 7 Jones, 141 194 

Cherry v. Slade, 2 Hawks, 400 328 

Chesebro, Bahnson v., 77 — 325 145, 146 

Cheshire, Condry v., 88 — 375 41.131,276 

Cheshire, Garrett v., 69 — 396 299 

Chester v. Richardson, 82—343 333. 334 

Chipman, Sumner v., 65—623 103 

Chisholm, McLenan v., 64 — 323 344 

Christenbury v. King, 85 — 229 17 

Christmas v. Mitchell, 3 Ire. Eq., 535 

Childs v. Martin, 68—307 333, 383 

Chipley, Simonton v., 64 — 152 333 

Church v. Fumiss, 64 — 659 380 

Churchill v. Insurance Company, 88 — 205 130. 131 

Churchill v. Lee, 77 — 341 157, 158, 210 

Claflin V. Underwood, 75 — ^485. 260 

Clara, State v., 8 Jones, 25 225 

C 



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XVni CASES CITED. 



PAGE. 

Clark, Austin v., 70—458 128, 215 

Clark V. Clark. 64 — 150 146, 154, 176, 180 

Clark V. Clark, 65 — 655 ... 100, 103 

Clark, German v., 71 — 417 167 

Clark V. Latham, 8 Jones, i 154 

Clarke, Mitchell v.. Mart., 25 378 

Clarke, Palmer v., 2 Dev., 354 262, 263 

Clark V. Simonton, 65 — 525 36 

Clark V. Stanly, 66 — 59 393 

Clark V. Wagner, 78 — 367 203, 262 

Clark, White v., 82 — 6 221, 342 

Clark V. Williams, 70—679 239, 240 

Clark V. Wolfe, 77 — 100 60. 122, 135, 344 

Clayton v. Henry, 82 — ^423 131 

Clayton, Henry v., 85 — 371 130 

Clapton V. Johnston, 82 — 423 340, 418 

Clayton v. Jones, 68 — 497 204, 207, 283 

Clayton, Lusk v., 70 — 184 231, 237, 240 

Clayton v. Rose, 87 — 106 17, 20 

Claywell, Blackwell v., 75 — 213 25 

Clegg V. Soapstone Co., 66—391 132, 209, 229 

Clegg V. Soapstone Co., 67 — 302 129, 333 

Clements, Wells v., 3 Jon., 168 224 

demons v. Hampton, 70 — 534 156, 162, 331 

Clemmons v. Hampton, 78—534 53 

Clerk's Office v. Allen, 7 Jon., 156 287, 290 

Clerk's Office v. Bank, 66—214 290 

Clerk's Office v. Huffsteller, 67 — ^449 5. 346, 352 

Clifton V. Wynne, 81—169 248 

Cline, Lull v., 89— 186 336 

Cloman v. Staton, 78 — 235 56, 57 

Clyde, Best v., 86 — 4 105, 116, 335 

Coates V. Stephenson, 7 Jon., 124 316 

Cobb, Loftin v., I Jon., 406 15 

Cobb V. O'Hagan, 81 — 293 129 

Cobb, Wheeler v., 75—21 67, 70, 76, 179, 180, 181 

Coble V. Coble, 82 — 339 309, 210, 212 

Coble V. Thom, 72 — 121 302, 303, 306 

Coffield V. McNeill, 74 — 535 93 

Coffield V. Warren, 72 — 223 134 

Cocdell V. Exum, 69 — 464 125 

Cohen, Bear v., 65—511 46. 53, no. 153. 162, 174, 193, 194, 196 

Cohen v. Commissioners, 77 — 2 167 

Cohen, Jones v., 82—75 106 

Cohen, Marsh v., 68 — 283 109, 329 

Cohen, Saulsbury v., 68 — 289 346, 410 

Cohen, Seymour v., 67 — 345 383 

Coit. Bradford v., 77 — 72 129 

Coit, Mauney v. , 86 — 463 30 

Colbert v. Piercy, 3 Ire., 77 378 

Cole, Blackstock v., 6 Jones, 560 15 

Cole, Long v., 72 — 20 380 

Cole, Long v., 74 — 267 129 

Coleman, Eliason v., 86 — 235 393 

Colgrove, Isler v., 75 — 334 248 

Colgrove v. Koonce, 76 — 363 49. 52, 409 

Collier v. Arrington, Phil., 356.. 51 

Collins V. Gilbert, 65 — 135 330 

Collins, Green v., 6 Ire., 139 340, 342, 420 



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CASES CITED. XIX 



PAGE. 

Collins V. Nail, 3 Dev., 224 325, 327 

Collins, State v., 3 Dev., 117 59, 328 

Commissioners v. Addington, 68 — 254 355 

Commissioners, Alexander v., 67 — 330 55, 400 

Commissioners Blackburn v., 68—406 108 

Commissioners v. Blair, 76 — 136 122, 125 

Commissioners, Buckman v., 80 — 121 401 

Commissioners, Carson v., 64 — 566 403 

Commissioners, Cohen v., 77 — 2 167 

Commissioners v. Cook, 86-— 18 335 

Commissioners, Cromartie v., 85 — 211 332 

Commissioners, Cromartie v., 87 — 134. . . » '. .402 

Commissioners, Daniel v., 74 — 494 13 

Commissioners, Edwards v., 70^571 400, 403 

Commissioners, F17 v., 82 — 504 402, 403 

Commissioners, Halcombe v., 89 — 346 408, 410 

Commissioners, Hall v., 74 — 130 97 

Commissioners. Hannon v,s 89 — 123 393, 402 

Commissioners. Hawley v., 82 — 22 29 

Commissioners, Haymore v., 85 — 268 9, 10, 13, 392, 399 

Commissioners, Johnston v., 67 — loi 55, 317, 400, 402, 403 

Commissioners, Jones v. , 69 — 412 55. 57. 

Commissioners, Jones v., 73 — 182 93, 115 

Commissioners, Jones v., 85 — 278 91, 94, 95, 382 

Commissioners, Jones v., 88 — 56 358 

Conly. Kincaid v., Phil. Eq., 270 428 

Conly, Kincaid v., 64—387 428 

Commissioners v. Lash, 89 — 159 218, 220, 224, 372 

Commissioners, Leach v., 84 — 829 401 

Commissioners, Leak v. , 64 — 132 93 

Commissioners v. Lemly, 85 — 341 58, 59, 332, 365, 366 

Commissioners, Love v., 64 — 706 85, 91, 93, 94, 95, 123, 403 

Commissioners, Lowe v., 70 — 532 167, 175 

Commissioners, Lutterloh v., 65 — 403 399, 4c i, 402, 403 

Commissioners v. Magnin, 78 — 181 39, 332 

Commissioners v. Magnin, 85 — 114 210, 231, 233, 235, 334 

Commissioners v. Magnin, 86 — 285 39 

Commissioners, Marshall v., 89 — 167, 170, 175 

Commissioners, Mauney v., 71 — 486 164, 174, 402 

Commissioners, McLendon v., 71 — 38 402 

Commissioners v. McPherson, 79 — 524 80, 93 

Commissioners, McRae v., 74 — 415 351 

Commissioners v. McRae, 89 — 95 407 

Commissioners, Mitchell v., 74 — 487 175 

Commissioners, Moore v., 87 — 209 26 . 

Commissioners, Pegram v. , 64 — 557 400, 401 

Commissioners v. Piercy, 72 — 181 105, ii6, 207 

Commissioners, Railroad v., 82 — 259 167 

Commissioners v. Raleigh, 88 — 120 210, 233 

Commissioners V. Riley, 75 — 144 178, 185, 192, 305 

Commissioners v. Satchwell, 88 — i 337 

Commissioners. State v., 70—137 400 

Commissioners, Steele v., 70 — 137 55 

Commissioners, Thomas v., 66 — 522 400, 401 

Commissioners, Uzzle v., 70—307 403 

Commissioners, Webb v. , 70 — 307 403 

Commissioners, Wharton v. , 82 — 1 1 29, 34 

Commissioners, Winslow v., 64 — 218 86, 284, 401 

Condry v. Cheshire, 88 — 375 41, 131, 276 



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XX CASES CITED. 



PAGE. 



Connelly, Morrison v., 2 Dev., 233 34 

Connor, Tate v.. 2 Dev. Eq., 224 87 

Cook, Commissioners v., 86— -18 335 

Coomer V. Little, Conf., 92 407 

Cooper, Brown v.. 85 — ^477 211 

Cooper. Brown v , 89 — 237 367. 377, 409 

Cooper, Gray v., 65—183 374 

Cooper, State v., 83 — 671 2i6 

Cooper, Vest v., 68 — 131 333 

Copeland, Matthews v., 80—30 6, 124 

Corbin V. Berry. 83— 27 .165. 198,291,334,341 

Com V. Stepp, 84 — 599 - 66 

Cornelius, Morrison v., 63 — 346 345 

Cosby, McWilliams v.. 4 Ire., 173 ---378 

Cotten V. Ellis, 7 Jon., 545 401 

Cotton, Mayho v., 69 — 289 295, 306 

Cotten V. McClenahan, 83—332 23, 83, loi, 102 

Cotten V. McClenahan, 85 — 254 13, 23, 240, 300 

Cotten V. Willoughby, 83—75 '57 

Council, Hodges v., 86 — 181 27, 30 

Council V. Rivers, 65 — 54 380 

Council, Rule v., 3 Jones, 33 327 

Council. Williams v., 4 Jones, 206 15, 266 

Covington V. Ingram, 64 — 123 241,410 

Covington, Leak v.. 87 — 501 233, 335 

Covington v. Stewart, 77 — 148 12, 17, 18, 19 

Covington, Wall v., 76—150 234, 315, 320 

Covington, Wall v., 83 — 144 126 

Cowan v. Baird, 77 — 201 84, 105, 124,207 

Cowan, State v., 7 Ire., 239 413 

Cowles V. Hardin, 79 — 577 48, 114, 145 

Cowles V. Hayes, 69 — 406 131 

Cowles V. Hayes, 71 — 230 41 

Cowles V. Haynes, 67 — 128 330 

Cowles, Neal v. , 71 — 266 : 428 

Cowles V. Oaks, 3 Dev., 96 -.189 

Cowper, Darden v., 7 Jones, 210 406 

Cox, Badham v., 11 Ire., 456 265 

Cox v. Cox, 84 — 138 24, 210, 233, 234 

Cox V. Hamilton, 69 — 30 349 

Cox, Ivy v., I Dev. Eq., 58 30 

Cox, Kirkham v., i Jones, 423 183 

Cox V. Long, 69 — 7 92, loi 

Cox, Nicholson v., 83 — 48 42. 45, 67, 74, 131 

• Cox. Price v., 83 — 261 67. 70. 71, 178, 179. 205 

Cox, Worth v., 89—44 381 

Coxe, Camp v., i D. & B., 52 ..264 

Coxe, Parkins v., 2 Hay., 339 404 

Coxe V. Skeen, 3 Ire., 443 379 

Cracoff V. Morehead, 67 — 422 175 

Crafton, Hoff v., 79 — 592 210 

Craig, Bonham v., 80 — 224 120 

Craige, Hall v., 65 — 51 232 

Craige, Hall v., 68 — 305 318 

Craige, Neely v., Phil., 187 12 

Craige, State v. , 89—475 •. 413 

Craton, State v., 6 Ire.. 164 326 

Craven, Meneeley v., 86 — 364 98, 102 

Craven v. Pamlico, 73 — 298 401 



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CASES CITED. XXI 



PAGF. 

Crawford v. Manfg Co., 88 — 560 353 

Crawford v. McLeUan, 87 — 169 12, 13, 23 

Crawford, Straus v., 89 — 13, 156 

Crawford, Surratt v., 87—372 250, 255,340, 385 

Crawley v. Woodfin, 78 — ^4 333 

Creath, Speed v., i Hawks, 399 224 

Creditors, Bank v., 80—9 125, 201, 353 

Crctcher V. McCadden, 64 — 262 329 

Crews, Cheatham v., 81 — 343 62, 86, 125 

Crockett, State v., 82 — 599 342 

Cromartie, Abbott v., 72 — 292 295, 299, 302 

Cromartie V. Com*rs, 85 — 211 332 

Cromartie V. * om*rs, 87 — 134 402 

Cron V. Hinson, 8 Jones, 347 15 

Cross, Johnson v., 66 — 167 305, 308 

Crouse, State v., 86—617 332, 337 

Crummen v. Bennett, 68 — ^494 299, 300, 302, 305 

Crump V. Mims, 64 — 767 78, 94, 136 

Crump V. Thomas, 89—241 126 

Crumpler, Daniel v., 75 — 184 98, 102, 276 

Culver V. Eggers, 63—630 107, 392 

Cumming v. Bloodworth, 87—83 301 

Cunningham, Bell v. , 8 1 — 83 255 

Cunningham v. Bell, 83—238 168 

Cunningham, So. Exp. Co. v., 67 — 425 68 

Cureton, Abrams v., 74 — 523 ii, 40, 43, 56 

Curlee v. Thomas, 74 — 5 1 *. 305 

Currie v. Kennedy, 78 — 91 362 

Currie v. McNeill, 83 — 176 27, 236 

Currin, Ragland v., 64 — 355 5 

Currituck, Wharton v., 82 — ii 64, 84, 139 

Curtis V. Cash, 84 — 41 211, 334 

Dail V. Harper, 83—4 105, 207 

Dail V. Sugg, 85 — 104 295, 299 

Daily, Sanderson v.. 83—67 255, 381, 382 

Dalby, Winston v. , 64 — 299 *. 50 

Dalton V. Dalton, 7 Ire. Eq., 197 405 

Dalton v. Webster, 82 — 279 334 

Dancy, State v., 78 — 437 224 

Daniel, Badger v., 77 — 251 76 

Daniel, Badger v., 79 — 372 12 

Daniel, Badger v., 82 — ^468 327, 336 

Daniel v. Com'rs, 74 — 494 13 

Daniel v. Crumpler, 75 — 184 98, 102, 276 

Daniel, Farmer v., 82 — 152 41 

Daniel v. Hodges, 87—95 76 

Daniel V. Laughlin, 87 — ^433 23, 24, 33, 255 

Daniel v. Owen, 72 — 340 134 

Darden v. Cowper, 7 Jones, 210 406 

Darden, May v., 83—237 332. 354 

Daughtry V. Warren, 85 — 136 168 

Davidson v. Alexander, 84 — 621 203, 359, 360 

Davidson, Bratton v., 79 — 423 68, 138 

Davidson v. Elems, 67 — 228 43, 85, 87, 89 

Davidson. Sparrow v., 77—35 60, 76, 337, 383 

Daves, Haywood v., 81 — 8 427 

Daves, In re, 81 — 72 288, 294, 332, 334 

Davie, Peebles v., 82 — 385 390 

Davis, Battle v., 66— 252 - 39,43,200 



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XXII CASES CITED. 



PAGE. 

Davis V. Davis, 83 — 71 53 

Davis V. Evans, 5 Ire., 525 41. 264 

Davis V. Fox, 69 — ^435 39» 4o. 43 

Davis V. Garrett, 3 Ite., 459 I95i 265 

Davis V. Gilliam, 5 Ire. Eq., 308 404» 405 

Davis V. Hill, 75 — 224 225 

Davis, Insurance Company v., 68 — 17 158. 185 

Davis, Insurance Company v., 74 — 78 I49» 163 

Davis V. McArthur, 78 — 357 15. 16 

Davis V. Marshall, 2 Hawks, 59 327 

Davis V. Moss, 81 — 303 358, 390, 392 

Davis V. Perry, 89 — ^420 4*^8 

Davis, Reiger v., 67 — 185 224 

Davis V. Rogers, 84 — ^412 243 

Davis V. Shaver, Phil. , 220 

Davis, Shelton v., 69^324 80, 122 

Davis, State v., 4 Dev., 412 , 223 

Davis, State v., 82 — 610 , 305 

Davis, Stenhouse v., 82 — 432 ^ 168 

Davis, Tucker v., 78 — 330 14^ 

Davis, Watson v., 7 Jones. 178 218 

Davis, Wolf v., 74 — 597 241 

Davis, Woodsworth v., 75 — 159 , 13 

Dawson, Austin v., 75 — 523 12, 25 

Dawson, Flack v., 6^42 43, 46, 48, 85, 96. 105, 207, 233 

Dawson v. Hartsfield, 79 — 334 255 

Day V. Day, 84—408 28 

Day V. Howard, 73 — i I7» 20 

Deal V. Palmer, 68—215 66, 83, 128, 383 

Deans. Hinton v., 75—18 127. 134. 356 

Oeans v. Jones, 6 Jones, 230 405 

Deaver v. Erwin, 7 Ire. Eq., 250 128 

Deaverv. Keith, Phil.. 428 67 

Deaver, Rhea v., 85 — 337 2H 

Debnam, Richardson v., 75 — 390 337 

Deep River V. Fox, 4 Ire. Eq., 61 198 

Deep River Copper Company v. Martin, 70 — 300 192 

Dellinger, Hallman v., 84 — i 65 

Dellingerv. Tweed. 66—206 295, 305 

Deloach v. Rogers, 86 — 357 392 

Deloach v. York, 3 Hawks, 36 318 

De Priest v. Patterson, 85—376. 130, 240 

Derr V. Stubbs, 83—539 loi 

DeRossett, Von Glaughn v., 81 — 467 26 

DeRossett, Von Glahn v., 76—292 47» 84, 85, 104 

Devane, McAlister v., 76 — 57 15 

Devereuxv. Devereux, 81—12 56, 57. 138. 342, 427 

Devereux, Hyman v., 63 — 624 - 84 

l)evereux, Hyman v., 65 — 588 173, 3^5 

Devriesv. Summit, 86—126 67, 145, 146, 148, 154, 179, 194. 196 

Devries v. Warren, 82 — 356 10 1 

Dewey, Isler v., 67—93 373 

Dewey, Isler v., 79 — i -.215, 333 

Dewey, Isler v., 84 — 345 i6. 

Dewey, Smith v., 64 — 463 169, 250 

Dewey v. White, 65 — 225 53 

Dick v. Dickson, 63—488 332 

Dick, State v., 60—440 222 

Dickens v. Barnes, 79 — ^490 , ^17 



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CASES CITED. > XXIII 



PAGE. 

Dickerson, Love v., 85 — 5 210 

Dicks, Walker v., 80—263 99 

Dickson, Dick v., 63 — ^488 332 

Dickson, McDonald v., 85 — 248 12, 13. 22, 23, 30, 256, 300 

Dickson, McDonald v., 87 — 404 35, 203 

Dickson, Moore v., 74 — 423 215 

Dixon V. Dixon, 81 — 323 249 

Dixon, Kirkman v. , 66 — ^406 133, 342 

Dixon, Latham v., 82 — 55 255, 376 

Dixon, McDowell v., 85 — 248 249 

Dixon, State v.. 71—204 346 

Dixon, State v.. 75 — 275 223 

Doak, McCulloch v., 68—267 132 

Dockery, Everett v., 7 Jones, 390 15 

Dockery v. French, 69r— 308 168 

Dobbs v. Gullidge, 4 D. & B., 68 19 

Dobson v. Chambers, 78 — 334 126, 333 

Dobson, Harshaw v., 64 — 384 91 

Dobson, Halyburton v., 65—88 374, 375 

Dobson v. Murphy, i D. & B., 586 15 

Dobson V. Simonton. 78^3 167,170.200,398 

Dobson V. Simonton, 86 — 492 241 

Dodd, Watson v.. 72 — 240 427 

Dodd V. Watson, 4 Jones Eq., 48 404 

Dodson V. Bush, i Car. L. R., 236 195 

Donaldson, State v., 83 — 683 339 

Dorsey v. Allen, 85 — 358 169 

Dougan v. Arnold, 4 Dev., 99 f. 327 

Dougherty v. Logan, 70 — 558 248 

Dougherty v. Sprinkle. 88 — 300 79 

Doughty V. Railroad, 78 — 22 118, 119. 124 

Douglas V. Caldwell, 64 — 372 210, 233 

Douglas. McLean v., 6 Ire., 233 162, 195 

Dowd, Simmons v., 77 — 155 131,328, 332 

Doyle v. Brown, 72 — 393 131 

Doyle V. Raleigh, 89 — 133 402 

Dozier v. Gregory, i Jon., 100 405 

Draughan, Strickland v., 88—315 340, 341 

Duckworth, England v., 75 — 309, 221 

Duckworth, Johnson v., 72 — 244 132, 332 

Duffy V. Averett, 5 Ire.. 455 76 

Duffy, Middleton v., 73- -72 61, 67, 74, 76 

Dula v. Young, 70 — ^450 1 86 

Duncan, Jimmerson v., 3 Jon., 537 266 

Duncan, Little v., 89 — 416 407 

Duncan, State v.. 6 Ire., 236 ---.58, 59 

Dunlop, State v., 65—288 224, 226 

Dunkart v. Henry, 87 — 228 170 

Dunkart V. Rinehart, 87 — 224 170, 171 

Dunn V. Bagby, 88 — 91 276 

Dunn V. Barnes, 73—273 81, 84, 85, 105, 124. 203, 205, 207 

Dunn, Robertson v., 87 — 191 26. 33 

Dupree v. Dupree, 4 Jon., 387 406 

Durden V. Simmons, 84 — 555 96 

Durham v. Bostick, 72 — 353. : 82, 95, 301 

Durham, Lloyd v., 60—282 298 

Durham, Porter v., 79 — 596 315 

Durham, Ross v., 4 D. & B., 54 15 

Duvall V. Rollins, 68—220 305 



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XXIV CASES CITED. 



PAGE. 

Duvall V. Rollins. 71 — 218 302, 305, 344 

Dyer V. Rich, 2 Car. L. R., 610 325 

Earp V. Richardson, 75 — 84 235, 238 

Earp V. Richardson, 78 — 277 22 

Earp V. Richardson, 81 — 5 22, 427 

Earl V. Hardie. 80 — 177 295, 299 

Easley, Melvin v., i Jones, 386 222 

Eccles, Price v., 73 — 162 120, 231, 233 

Eddings, Justice v., 75 — 581 41, 83, 208 

Edney v. Edney, 81 — i 132 

Edgcrton, Littlejohn v., 76—468 92 

Edgerton, Littlejohn v., 77 — 379 300, 302, 307 

Edgerlon v. Powell, 72 — 64 90, 118 

Edmiston, Moore v., 70—510 10, 79, 115, 117, 120, 122, 135, 336 

Edmunds, Hervey v., 68 — 243 60, 62, 76, 77. 241, 358, 359 

Edwards v. Com'rs, 70 — 571 400, 403 

Edwards, Francis v., 77 — 271 97 

Edwards, Gill v., 87 — 76 296, 305 

Edwards, Grant v., 86^513 295 

Edwards, Grant v., 88—246 131, 428 

Edwards v. Jarvis, 74 — 315 12 

Edwards v. Kearsey, 74 — 241 299 

Edwards v. Kearsey, 75 — 409 299 

Edwards v. Kearsey, 96 U. S., 595 297, 299 

Edwards, Henson v., 10 Ire., 43 298 

Edwards, McMillan v., 75 — 81 89, 118 

Edwards v. Tipton, 85 — 479 -.-.17. 24 

Ef^erton v. Logan, 81 — 172 28 

Eggers, Culver v., 63 — 630 107, 392 

Eliason v. Coleman, 86 — 235 393 

Elkins, Scott v., 83 — 424 17 

Ellington v. Wicker, 87 — 14 64, 130 

Elliott, Felton v., 66—195 8, 346 

Elliott V. Holliday, 3 Dev., 377 327 

Elliott, Whitakerv.. 73—186 301 

Ellis, Blum v., 73 — 293 236, 256 

Ellis, Cotton v., 7 Tones, 545 401 

Ellis, Gregory v., 86 — 579 296, 308 

Ellis V. Scott, 75—108 12 

Ellison V. Raleigh, 89 — 125 392, 402 

Elms, Davidson v., 67 — 228 43, 85, 87, 89 

Elson, Levinson v., 88 — 182 199 

Ely V. Bush, 89—358 407 

England v. Duckworth, 75 — 309 221 

England v. Gamer, 84 — 212 241 

England v. Gamer, 86—366 90, 118, 124 

English V. Enp[lish, 87 — ^497 131 

Erwin v. Erwm, 3 Dev., 528 328 

Erwin, Deaver v., 7 Ire. Eq., 250 128 

Erwin v. Lowery, 64 — 321 97, 104, 120, 207, 212, 383 

Erwin, Mabry v., 78 — ^45 128, 131, 205 

Estes V. Hairston, i Dev., 354 328 

Etheridge v. Vemov, 71 — 184 40, 48, 427 

Etheridge v. WoodJey, 83 — 11 27.31,61,67,76 

Eubanks v. Mitchell, 67 — 34 233 

Eure, Lee v., 82 — 428 255 

Eure V. Paxton, 80—17 33^, 410 

Evans, Davis v., 5 Ire., 525 41, 264 

Evans, Jackson v., 73 — 128 373 



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CASES CITED. XXV 



PAGE. 

£vans V. Rapier, 74 — 639 50 

Evans v. Satterfield, I Mur. , 413 15 

Evans v. Transportation Co., 5 Jones, 331 tgS 

Everett v. Dockery, 7 Jones, 390 15 

Everett, Galbreath v., 84 — 546 165, 168, I74 

Everett, Weil v., 83—685 340 

Evers, Carmerv., 80—55 i85, 192, 355 

Exum, Cogdell v., 69—464 125 

Exum. Reed v., 84 — 430 26, 98, 100, 277, 278 

Fairley, Kerchner v., 80 — 24 I98 

Fairley, Wall v., 73 — 464 46, 93 

Fiairley, Will v., 77 — fo5 48, 149, 272 

Faison v. Bowden, 74 — ^43 > I2, 36 

Faison v. Bowden, 76 — 425 36 

Faison v. Johnson, 78 — 78 I27 

Faison v. Mcllwaine. 72 — 312 164, 172, 173, 175, 380. 383 

Falkner v. Hunt, 68—475 331, 410 

Falls v. Gamble, 66 — 455 48 

Farish, Livingston v., 89 — 140 156 

Farley v. Lea, 4 D. & B , 169 247, 264, 431 

Farmer v. Daniel, 82 — 152 41 

Farmer, King v., 88 — 22 I18 

Farmer, Kullv., 78 — 339 36 

Farmer V. Willard, 75 — 401 126, 318, 341, 345 

Farmers' Bank, Glenn v., 80 — 97 125 

Faulk V. Smith, 84 — 501 70, 180, 181 

Favetteville, Overby v., 81 — 56 231, 236 

Felton V. Elliott, 66—195 8, 346 

Felton, Mardre v., Phil., 279... 390 

Felton, Powell v., 11 Ire., 469 15 

Fentress, Branson v., 13 Ire., 165 365 

Fentress, Swain v., 4 Dev., 601 327 

Ferebee, Gaither v., 60—310 224 

Ferguson. Howell v. 87 — 113 64, I05 

Ferris, Murray v. , 71 — 492 40, 41 

Fesperman, Neal v., i Jones, 446 210 

Fickey v. Merrimon, 79 — 585 210, 211, 224, 241, 362 

Finch v. Baskerville, 85 — 205 83, 86, 90, 94, I18, ti9, 124 

Finger, Keener v., 70—35 209, 213, 231, 234 

Finley v. Hayes, 81—368 89 

Ftnley v. Smith, 4 Dev., 95 257, 264 

Finley v. Smith, 2 Ire., 225 248 

Fisher, Bryant v., 85—71 95, 132, 211, 342, 343, 382 

Fitzgerald, Logan v., 87 — 308 , 12, 14, 16, 226 

Flack V. Dawson, 69—42 43, 46, 48, 85, 96, to5, 207, 233 

Planniken v. Lee, i Ire. , 293 , 15 

Fleming v. Fleming, 85 — 127 3^, 36 

Fleming, Leach v., 85 — 447 91 

Flemingv. Roberts, 77 — 415 231,238 

Fleming v. Roberts, 84 — 532 410 

Flemingv. Staton, 74 — 208 36 

Floyd, Thompson v., 2 Jones, 313 326 

Fljrnt V. Bodenhamer, 80 — 205 223 

Foard V. Alexander, 64—69 93, 164. 169, 172, 173, 380, 381, 383 

Foard, Heilig v., 64—710 233 

Foard, Turner v., 83—683 342, 344 

Folk V. Howard, 72—527 63, 380. 409 

Foote, Bank v., 77—131 128 

Foote, Peebles v., 83 — 102 I44, 145, 146, 260 

D 



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XXVI CASES CITED. 



PAGE. 

Forbes, Whitaker v., 68 — 228 92 

Foreman v. Bibb. 65 — 128 : 141, 380 

Fort, Applewhite v., 85 — 596 339 

Fort, Lewis v., 75—25 1 375 

Fortune, Jones v., 69 — 322 83, 208 

Foster V. Frost. 4 Dev.,424 270 

Foster v. Penry, 76 — 131 125 

Foster v. Penry, 77 — 160 333 

Fourshee v. Patershall, 67 — 453 209, 229, 230 

Foust, Brown v., 64—672 203 

Foust V Trice; 8 Jones, 490 248 

Foy V. Haughton, 83 — 467 94, 107, 354 

Foy V. Morehead, 69 — 512 56 

Foy, Isler v., 66—547 47» 53 

Foy, Ulley v., 70—303 40,41,98,344 

Foy, Whitford v., 71 — 527 236 

Fox V. Brooks, 88 — 234. 301 

Fox, Davis v., 69 — ^435 39, 40, 43 

Fox, Deep River Co. v,, 4 Ire. Eq., 61 198 

Fox V. Kline, 85 — 173 22, 53, 168, 249, 274 

Fox, Milliken v., 84 — 107 .53, 358 

Fraley v. Kelly, 67 — 78 36 

Fraley V. Kelly, 79 — 348 36 

Fraley v. Kelly, 88 — 227 297 

Fraley v. Marsh, 68 — 160 54 

Francis v. Edwards, 77 — 271 97 

Francks v. Sutton, 86 — 78 129, 259 

Frank, Branch v., 81 — 180 70, 180 

Franklin, Bells v., D. & B., 465 327 

Fraps, Womble v., 77 — iq8 97, 104, 207, 212 

Frederick, Best v., 84 — 176 2ii' 

Freeman v. Grist, i D. & B , 217 ^ 188 

Freeman. McMinn v., 63 — 341 40 

Freeman v. Sprague, 82 — 366 13, 15 

French, Dockery v. , 69 — 308 168 

French v. Wilmington, 75 — 387 176, 333 

Freshwater v. Baker, 7 Jon., 255 34 

Fries, McRary v., 4 Jon. Eq., 233 265 

Froelich v. Southern Express Company, 67 — 2 10 

Frost, Foster v., 4 Dev., 424 270 

Frost v. Naylor, 68 — 325 305 

Frost v. Reynolds, 4 Ire. Eq, , 494 265 

Fry v. Commissioners, 82 — 504 402, 403 

Fulbright v. Trilt, D. & B., 491 67 

Fuller, Gibbs v., 66 — 116. 122, 135 

Fuller V. McMillan, Bus., 206 365 

Funderbunk, Hasty v., 8g — 93 336 

Fumiss, Church v., 64 — 659 380 

Fuirell V. Spivey, 63 — 526 332 

Futvell, Johnston v., 86- -122 67 

Gaddy, Winchester v., 72 — 115 296 

Gaither v. Ferebee, 60 — 310 224 

Gaither v. Gibson, 63 — 93 6»99 

Gaither, Gray v., 71—55 ^ .\. . 333 

Gaither, Gray v. . 74 — 237 ... 199 

Galbreath v. Everett, 84— 546 165, 168, 174 

Gambill v. Gambill, 89 — 201 222, 355 

Gamble, Falls v. , 66—455 48 

Gamble v. Rhyne, 80 — 183 184, 185, 192 



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CASES CITED. XXVII 



PAGE. 



Gamble v. Watterson, 83 — 573 301 

Gardner, Rowland v., 69._53 .. 48, 87 

Gamer, England v.. 84 — 212 241 

Gamer, England v., 86 — 366 90, 118, 124. 

Garrett v, Cheshire, 69 — 396 299 

Garrett, Davis v., 3 Ire., 459 195, 265 

Garrett v. Love, 89 — 205 410 

Garrett v. Smith, 64 — 93 203 

Garrett v. Trotter, 65 — 430 10, 79, 80, 94, 95. 122, 124, 125, 126, 332 

Gashine v. Baer, 64 — 108 180 

Gaskins, Price v., Phil. Eq., 224 24 

Gaslight Co. v. Raleigh, 75. .274 403 

Gaster V. Hardie, 75 — ^460 89. 169 

Gaston, Rowark v., 67.. 291 66 

Gatling, Saunders v.. 81 — 298 ! 40, 390, 392. 394 

Gatlin v. Tarboro, 78 — 1 19 344 

Gatlin, Walton v., 60—310 344 

Galling, Willey v., 70—410 39 

Gause v. Perkins, 3 Jon. Eq., 177 .. 198 

Gay V. Brookshire, 82 — ^409 332, 334 

Geer v. Reams, 88 — 197 129. 13J 

Gentry, Morris v., 89 — 248 124, 202, 203, 205, 336, 408, 409, 412 

George v. High, 85—99 9'* 94 

George v. High, 85—113 43. 44 

Gheen v. Summey, 80 — 187 302 

German v. Clark, 71 — ^417 167 

Gibbett v. Maultsby, 71 — 345 30 

Gibbs V. Fuller, 66 — T16 122. 135 

Gibbs, Hall v., 87—4 12, 33 

Gibson, Gaither v , 63 — 93 6» 99 

Gibson V. Grover, 63 — 10 203 

Gibson v. Smith, 65 — 103 209 

Gibson, Smith v.. 74 — 684 145, 180 

Gidncy v. Halsey. 2 Hawks, 550 328 

Gidney v. Logan, 79 — 214 \ 371 

Gidney, Mauney v., 86^717 352, 427 

Gidney, Mauney v., 88 — 200 131, 133 

Gidney, Moore v., 75 — 34 '. . .45, 69, 130 

Gidney v. Moore, 86 — ^485 374, 375 

Gilbert, Collins v., 65 — 135 330 

Gilbert v. James, 86 — 244 225 

Gilchrist, Blue v,, 84 — 239 12, 32, 367 

Gilchrist v. Kitchen, 86^20 64. 125, 128, 140 

Gilchrist v. McLaughlin, 7 Ire., 310 : 15 

Giles, Palmer v., 5 Jones Eq., 41 

Gill V. Edwards, 87 — 76 295, 305 

Gill V. Young, 82—273 47. 88 

Gill V. Young. 88—58 125, 126 

Gilliam, Davis v., 5 Ire. Eq., 308 404, 405 

Gilliam, Woodley v., 64 — 649 8, 9, 61, 137 

Gilliam, Woodley v., 67 — 237 263, 264 

Gilkey, Allen v., 86 — 64 371 

Gillis v. McKay, 4 Dev., 172 265 

Gilmer, McCraw v.. 83 — 162 155 

Gilmer v. McNairy, 69 — 335 374 

Glenn t. Farmer's Bank, 72 — 626 87 

Gleen v. Farmer's Bank, 80 — 97 125 

Glenn v. Railroad Company, 63 — 510 225 

Glover, Leggett v., 71 — 211 377, 378 



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XXVIII CASES CITED. 



PAGE. 

Goddin, Branch v., 60 — 497 , .44 

Godwin, Holmes v., 69 — 467 loo, 105, 156, 207, 2x9, 222 

Goettle, Sims v.. 82 — 263 53, 162. 195 

Goff V. Pope, 82 — 696 340 

Gold Company v. Ore Company, 73 — 168 X70 

Gold Company v. Ore Company, 79 — ^48 173, 234. 236 

Goldsborough v. Turner, 67 — ^403 213 

Gooch V. Gregory, 65 — 142 253, 401 

Gooch, ^ong v., 86—709 , 335 

Gooch V. McGee, 83 — 59 256 

Gooch, Rogers v., 87 — 442 40 

Goodman v. Goodman, 72 — 508 88 

Goodman v. Litaker, 84 — 8 23, 26 

Goodman, Page v., 8 Ire. Eq.. 16 266 

Goodson. Keener v., 89— 273. • 231, 232, 237. 240, 241, 299, 407 

Go»"don V. Lowther, 75 — 193 87, 192, 405 

Gordon v. Sanderson, 83—1 337, 345, 413, 420 

Gordon, Welbom v., i Murph., 502 321 

Gorman v. Bellamy, 82 — 496 79. 135 

Gorman, Welherell v., 74 — 603 277, 278 

Gofmap, Williams v., 2 Hay., 155 328 

Govcrpor v. Welch, 3 Ire., 249. . 67 

Gowing V. Rich, i Ire., 553 266 

Grady, Slate v., 83—643 221, 225. 334 

Grady v. Threadgill. 13 Ire., 228 270 

Graham, Bank v., 82—481 341 

Graham V. Charlotte & S. C. R. R. Co.. 64— 631 Ill 

Graham v. Hamilton, 3 Ire., 381 364 

Graham, Henderson v., 84 — 496 125, 332 

Graham, McDougald v.. 75 — 310 95 

Graham v. Tate, 77 — 120 84 

Graham, Tredwell v., 88 — 208 374, 375 

Granberry, Ivey v., 66 — 223 lop 

Grant v. Bell, 87 — 34 39, 200, 211, 2iiB 

Grant v. Burgwyn, 79 — 513 178 

Grant y. Burgwyn, 84 — 560 36, 80 

Grant V. Burgwyn, 88—95 J2i, 123. 124, J25 

Grant v. Edwards, 86 — 513 295 

Grant v. Edwards, 88—246 131, 428 

Grant V. Hughes, 82 — 216 261, 298 

Grant v. Moore, 88—77 '^4 

Grant y. Newsom, 81 — 36 261, 358 

Grant, Pugh v., 86—39 40, 41, 367 

Crant V. Reese, 82 — 72 228, 231, 340. 418 

Grant v. Winburne, 2 Hay., 56 , 15 

Graves, Brown v. . 4 Hawks. , 342 265 

Gray, Ashe v., 88 — 190 11,86,90 

Gray v. Bowles, i D. & B., 437 27P 

Cray v. Cooper, 65 — 1 83 374 

Gray v. Gaither, 71—55 333 

Gray v. Gaither, 74 — 237 199 

Gray, Gates v., 66 — 442 10,78,84,115,120,205 

Gray. Worth v., 6 Jones Eq., 4 ;ro3, 352. 383 

Graybeal v. Powers, 83 — 561 96 

Green, Bank v., 78—247 ^95, 3Qi 

Green, Bar\)ee v., 86 — 158 IQO 

Green v. Castleberry, 70 — 20 209, 213. 230, 233, 234. 236, 337 

Green v. Castleberry. 77 — 164 236, 237 

Green v. Collins, 6 Ire., 139 --340. 343. 4JW) 



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CASES CITED. XXIX 



PAGE. 

Green v. Green, 69—294 84, 187, 237 

Green v. Greensboro, 83 — 449 35f36 

Green v. Hobgood, 74 — 234 354 

Green v. Johnston, 2 Hawks., 309 262 

Green v. Jones, 78 — 265 236 

Greene, Moore v., 73 — 394 14^, 147 

Green V. N. C. R. R. Co., 73—524 13,84,85 

Green v. N. C. R. R. Co.. 77—95 129 

Green, Scou v., 89—278 220, 237 

Green, Timberlake v., 84 — 658 26 

Green, Whiiesides v., 64 — 308 374 

Green, Williams v., 68—183 f33, 293 

Green, Williams v., 80—76. 24Q 

Greenlee, Halyburton v., 72 — 316 240 

Greenlee, Smith v., 3 Dev., 387 58, 59 

Greenlee, Stevelie v., i Dev., 317 379 

Greenlee, Tate v., 3 Mur., 556 224 

Greenlee, Young v., 82 -346 , 52 

Greenlee, Young v.. 85 — 593 128, 428 

Greensboro, Green v.. 83 — 449 35, 36 

Greensboro v. Scott, 84—184 229, 230 

Gregg V. Hill, 80—255 371 

Gregory, Dozier v., 1 Jones, 100 405 

Gregory v. Ellis, 86 — 579 296, 308 

Gregory, Gooch v., 65 — 142 253, 401 

Gregory v. Gregory, 69—522 4^» 49 

Griel v. Vernon, 65 — 76 128, 13^ 

Grier v. Cagle, 87 — 377 37^ 

Grierv. Rhyne, 67—330 I83, i84» 260 

lirover, Gibson v.. 63 — 10 203 

Griffin v. Hinson, 6 Jones, 154 319 

Griffin, Pender v., 72 — 27c 70, 131 

Griffith, Young v., 79 — 201 90 

Griffith, Young v., 84 — 715 o 

Grist, Freeman v., i D & B., 217 188 

Grist V. Backhouse, 4 D. & B., 164 -- 

Grizzard, Hannonv., 89—115 2l8, 224, 225 

Groom, Brodnax v., 64 — 244 333 

Guano Co. v. Willard, 73 — 521 25, 73 

Guano Co., Whitman v., 65 — 552 178 

Gudger v. Baird, 66—438 50, 88, 91, 231, 236, 237. 242 

Gudger v. Hensley, 82 — 481 16 

Guion V. Melvin, 69—242 6j, 138, f4f, 381, 384 

Guilford, State v., 4 Jones, 83 34P 

GuUidge. Dobbs v., 4 D. & B., 68 19 

Gully V. Macy, 81—356 42, 45. 69, 138 

Gully V. Macy, 84 — ^434 376 

Gulley V. Macy, 86 — 721 207 

Gully V. Macy, 89—343 317. 412, 4J3 

Gully, Stallings v., 3 Jones, 344 , 131 

Gupton. Jones v.. 65—48 61, 62, 139, 249, 386, 399 

Gurley. Walker v., 83—429 I34t 169, 175. 381 

Guy, Reardon v., 2 Hay., 245 326 

Haddock, Isler v., 72 — 119 343 

Ha^er v. Nixon, 69 — 108 296, 308 

Hwrs^on, Estesv., i Dev., 354 328 

H«*n V. Latham, 87— 192. 325. 339. 355 

Hahn, Miller v., 84—226 156, 169 

IJ^n, Smith v., 80—240 132, 134 



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XXX CASES CITED. 



PAGE. 

Halcombe v. Cora'rs, 8g — 346 408, 410 

Hale V. Richardson, 89 — 62 180 

Hall, Beard v., 79 — 506 47.241 

Hall, Benedict v., 76 — 113 114, 147 

Hall V. Com'rs, 74 — 130 97 

Hall V. Craige, 65—5 1 332 

Hall V. Craige, 68—305 318 

Hall V. Gibbs, 87—4 12. 33 

Hall, Starr v. , 87—381 409 

Hall, Walsh v., 66 — 233 97, loi, 103, 123, 239 

Hall V. Younts, 87 — 285 66, 239, 347 

Hallman V. Bellinger, 84 — i 65 

Halsey, Gidney v., 2 Hawks., 550 328 

Halstead, Baker v., Bus., 41 '. 325, 327 

Halstead, Spier v., 71 — 209 .70, 180, 181 

Halyburton v. Carson, 80 — 16 : 241 

Halyburton v. Dobson, 65 — 88 374, 375 

Halyburton V. Greenlee, 72 — 316 248 

Hamilton, Cox v., 69 — 30 349 

Hamilton, Graham v., 3 Ire., 381 364 

Hamilton, McMinn v., 77 — 300 57.342 

Hamilton, Myers v., 75 — 567 no, 194, 196 

Hamlett, Mangum v., 8 Ire., 44 .263 

Hamlin, Reade v., Phil., 128 325 

Hamlin v. Tucker, 72—502 118 

Hampton, Clemroons v., 70 — 534 156, 162, 331 

Hampton, Clemmons v. , 78 — 534 53 

Hampton v. Hardin, 88 — 592 340, 371, 373 

Hancock v. Bramlett, 85 — 393 34<>, 352 

Haney, State v., 2 D. & B., 390 226 

Hanna v. Hanna, 89 — 199 

Hanna v, Ingram 8 Jon. , 55 67 

Hannah v. Railroad, 87 — 351 51 

Hanner v. McAdoo, 86—370 236 

Hannon v. Com'rs, 89 — 123, 393, 402 

Hannon v. Grizzard, 89 — 115 218, 224, 225 

Harbin, Love v., 87 — 249 376 

Hardee, State v., 83—619 221, 223, 342 

Hardie, Boone v., 83 — 470 104, 207 

Hardie, Earl v., 80 — 177 295, 299 

Hardin v. Barrett, 6 Jon., 159 15 

Hardin, Cowles v., 79 — 577 48, 114, 145 

Hardie, Gaster v., 75 — 460 89, 169 

Hardie, Haywood v. . 76 — 384 185 

Hardie, Poe v., 65 — 447 299, 300, 301 

Hardin, Hampton v., 88 — 592 340, 371, 373 

Hardin, Jennmgs v.. Bus. Eq., 275 265 

Hardin v. Ray, 89 — 364 241, 358 

Hardy v. Jasper, 3 Dev., 158 263 

Hare v. Jernigan, 76—471 239, 240 

Hargett, State v.. 65 — 669 225 

Hargrove v Tuck, 73 — 24. 84 

Harker v. Arendell, 74 — 85 163 

Harkey v. Houston, 65 — 137 10, 47, 53, 80, 83, 112, 206, 240 

Harman, HoUingsworth v., 83^— 153 42 

Harper, Dail v., 83—4 105, 207 

Harper, Murphy v., 84 — 189 236 

Harper, Soutnerland v., 83 — 200 168 

Harrell, Howell v. , 71 — 161 134 



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CASES CITED. XXXI 



PAGE. 

Harrell, Nixon v.. 5 Jon., 76, .263 

Harrell v. Peebles, 79 — 26 65. 132, 210, 241, 358 

Harrell. Wood v., 74 — 338 143, 180 

Harris, Bank v., 84 — 206 88, 90, 92, 118 

Harris, Birdsey v., 68-92 134,330,382 

Harris v. Bryant, 83 — 568 49 

Harris v. Bums, 67 — 140 305 

Harris v. Burwell, 65 — 584 41, 97, 99 

Harris v. Jenkins, 72 — 183 131 

Harris v. Johnson, 65 — 478 84, 87 

Harris, Peacock v., 85 — 146 49 

Harris v. Ricks, 63^53 247 

Harris, Stafford v., 72 — 198 126, 140 

Harris, Steele v., 2 Car. L. R., 636 325 

Harris, Taylor r., 82—25 62, 138 

Harris, Von Glahn v. , 73 — 323 45, 88 

Harrison, Aycock v., 65 — 8 261 

Harrison, Aycock v., 71 — 432 51, 255, 383 

Harrison v. Battle, I Dev. Eq., 541 265 

Harrison, Bryan v., 76 — 360 • 217 

Harrison v. Chappeil, 84 — 258 • 335 

Harrison, Murphy v. , 65 — 246 8 

Harrison, Taylor v.. 2 Dev., 374 13 

Harrison, Wood v., i D. & B., 356 263 

Harshaw v. Dobson, 64 — 384 91 

Harshavir v. Dobson, 65 — 88 374, 375 

Harshaw v. McDowell, 89 — 181 346, 351 

Harshaw, Ramsour v., 8 Ire., 480 356 

Harshaw v. Woodfin, 64 — 568 99 

Hart, Bank v. , 67—264 lOl 

Hartsfield, Dawson-v., 79 — 334 255 

H*rts6eld v. Jones, 4 Jon., 309 206, 319, 326. 356 

Hartman v. Spiers, 87 — 28 316 

Harry, Simpson v., i D. & B., 202 195 

Harvey, Swepson v., 66 — 1-^6 97, 105, 207, 212 

Hasty V. Funderbunk, 89 — 93 336 

Hasty V. Simpson, 77 — 69 283, 289, 290 

Hasty V. Simpson, 84 — 590 253 

Haughton, Foy v., 83 — 467 94, 107, 354 

Haughton v. Newberry, 69—456 115, 122, 126, 155, 157, 242 

Havens v. Potts, 86 — 31 40, 41, 409 

Hawkins, Brown v., 65 — 645 124, 127, 180, 194, 196 

Hawkins v. Carpenter, 85 — 482 372, 374 

Hawkins v. Hughes, 87 — 115 51, 85, 87, 95 

Hawkins, Pescud v., 71 — 299 84, 95, 96 

Hawkins v. Savage, 75 — 133 12, 27 

Hawkins, Spencer v., 4 Ire. Eq., 288 264 

Hawkins, Slate v. , 72 — 180 324, 339 

Hawley v. Commissioners, 82 — 22 29 

Hawley, Hinsdale v. , 89 — 87 132, 133, 241 

Hawley, Steinberger v., 85 — 141 334 

Hawn, Sigmon v., 86 — 310 336 

Hayes, Cowles v., 69 — 406 31 

Hayes, Cowles v., 71 — 230 41 

Hayes, Finley v. 81—368 : 89 

Hayes v. Hunt, 85 — 303 267. 268 

Hayes, Morris v., 2 Jones, 93 > 15 

Haymore v, Commissioners, 85 — 268 .9, 10, 13, 392, 399 

Haymore, Vannoy v., 71 — 128 302 



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XXXII . CASES CITED. 



PAGE. 

k&yn^, Cowles v., 67 — 128 330 

Hftynes, Johnstoii v. , 68—509 23 ' 

Haynes, McNeely v., 76 — 122 144. 145, 146 

tiaynes, Smith v.. 82 — ^448 367 

Haywood v. Bryah; 63 — 521 iii 

Haywood, Carroll v.. 64 — ^481 333 

flaywood v. Daves, 81 — 8 : 427 

Haywood v. Hardie, 76 — 384 18< 

Haywood v. Haywood. 79 — ^42. 8, 68, 138 

Haywood V. Rogers, 73 — 320 gi 

'"idden, Brooks v., 80— 11 49. 353 

eiton. People v., 77 — 18 393 

eaton, Slate v., 77—505 216 

eck, Bryan v., 67 — 322 33^ 

tteilig V. Foard, 64—710 233 

Hellig V. Stokes, 63— 612. ..61, 67, 76, 164, 169, 162, 172, I75, 2O9, 229, 250 

Hellen, Whitehead v. , 74—679 283 

Hemphill V. Bright, 81—33 220 

Hemphill, Jones v., 77 — 42... lio. III, 210 

Henderson v. Ghiham, 84—496 125, 332 

Henderson, Hoke v., 3 Dev., 12 264 

Kenderson, Howerton v., 86—718 325, 326, 339, 345, 346, 352 
enderson, Mitchfell v., 63 — 643 5, 203. 3I7 

Henderson, Ross v., 77 — 170 : 28. 30 

Henly V. Lanier, 75—1 72 3^ 

Henly r. Wilson, 77 — 216 4I 

Henly v. Wilson, 83 — 405 17 

Hennessee, McKesson v., 66 — 473 173 

Henry, Batrtftt v., 85—321 231,232,335,343 

n6nry, Brogden v., 83 — 274 97, 105, 207, 334 

Henry V. Cannon, 86—24 125, 128, 33$ 

Henry, Clayton v. . 83—423 13I 

Henry v. Clayton, 85 — 371 . . . . 130 

H^nry, Dunkart v., 87—228 170 

Henry, Jones v., 84— 320 . 367 

Henry, Mabry v.. 83 — 298 I34, 381. 382 

Henry, Osboriie v., 66^354 4IJ 

Henry v. Rich, 64 — 379 211, 2 1§ 

Henry, Rollins v., 76—269 52 

Henry. Rollins v., 77—467 82. 198, 208, 354 

Henry, Rollins v., 78—352 76, 132, 141, 240,241, 243, 257 

Henry, Rollins v., 84—569 83, 208 

^lenry, Rollins v., 86—714 265 

Henryv. Sihith, 78-27 222 

Henry V. Willard. 73—35 375 

Hensley, Gudger v., 82—481 16 

Hanson v. Edwards, 10 Ire., 43 298 

Henson, Sossamer v. , 72 — 578 329 

Heptinstall v. Pet-ry, 76 — 190 310 

Heron Mining Co., Pullen v., 71 — 567 48 

Herring v. Outlaw, 70—334 8 

Herron, Brendle v., 68 — ^496 64. 66, 108 

Hfcrvey V. Edmunds, 68—243 60, 62, 76, 77, 241, 358, 359 

Hess V. Brower, 76—428 18O 

Hettrick V. Pdge. 82—65 166, 228 

Hewlett V. Nutt, 79 — 263 29, 39, 320 

Hewlett V. Nutt, 82—234 .' 35 

Hewlett V. Schenck, 82 — 234 .25 

Hewlett, Wescott v., 67 — 191 ito 



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CASES CITED. XXXIII 



PAGE. 

Wcycr V. Bealty, 76—28 96, 127, 356 

Hiatl V. Waggoner, S2 — 173 134 

Hice V. Woodard, 12 Ire. 293 221 

Hicks V. Skinner, 72 — l 427 

Higdon, Phillips v., Bus., 380 132 

High, George v., 85 — 99 91, 94 

High, George v.. 85—113 43, 44 

High, Smith v., 85—93 301 

Hill V. Brower, 76—124 --377 

Hill. Davis v., 75—224 225 

Hill. Gregg v. 80—255 371 

Hill. Jones v., 64 — 198 170, 171 

Hill V. Kessler, 63 — 437 , 299 

Hill, Moore v., 85—218 209, 335, 341 

Hill, Morrisey v., 9 Ire., 66 ^ 264 

Hill V, Overton, 81 — 393 16 

Hill, Powell v., 64—169 242 

Hill V. Wilton, 2 Mur., 14 15 

Hilliard, People v., 72—169 40, 89, 392, 393. 396 

Hilton v. McDowell, 87 — 364 335, 340 

Hinesv. Hines, 84—122 334, 387 

Hines, Vaughan v., 87—445 12, 25, 27. 30, 33 

Hinnanl. Moore v., 87—505 336, 358 

Hinsdale v. Hawley, 89—87 132. 133, 241 

Hinsdale v. Sinclair, 83 — 338 282, 285 

Hinsdale v. Thornton, 74-167 265 

Hinsdale v. Thornton, 75 — 381 265 

Hinsdale v. Williams, 75 — 430 301 

Hinson v. Adrian, 86—61 48 

Hinson, Cron v., 8 Jones, 347 15 

Hinson, Griffin v., 6 Jones, 154 319 

Hinson, Statev., 82—597 ^ 342 

Hinson, State v., 83 — 640 225 

Hinton v. Deans, 75— 18 127, 134, 356 

Hinton v. Hinton, Phil., 410 12 

Hinton, Russell v., i Mur., 468 188 

Hirsh v. Whitehead, 65—516 155, 157, 158, 163, 172, 173 

Hobbs, Moore v., 77—65 79, 85, 94, 123 

Hobbs, Moore v., 79—535 79. 85. 91 

Hobgood, Green v., 74 — 234 354 

Hodge V. Hodge, 72—616 : 86 

Hodges v. Council. 86 — 181 27. 30 

Hodges, Daniel v., 87 — 95 76 

Hodgin v. Matthews. 81 — 289 130 

Hoff V. Crafton, 79 — 592 2io 

Hogan v. Kirkland, 64—250 100, 285 

Hogan, Kirkland v. , 65 — 144 69 

Hoke v. Henderson, 3 Dev., 12 264 

Holcombe v. Loudermilk, 3 Jones, 491 273 

Holland, Phillips v., 78 — 31 66, 138, 159 

HoUey, Wilson v., 66—407 225 

HoUiday, Elliott v., 3 Dev., 377 327 

HoUiday v. McMillan, 83 — 270 loi, 272 

Hollingsworth v. Harman, 83 — 153 42 

Holmes v. Godwin. 69—467 100, 105, 156, 207, 219, 222 

Holmes v. Holmes, 84 — 833 326, 328 

Holmes, Jones v. , 83 — 108 343 

Holmes, Mauney v., 87 — 428 33, 73 

Holmes, Phillips v., 71 — 250 54, 56 

E 



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XXXIV CASES CITED. 



PAGE. 

Holt V. Iseley, 63 — 129 86 

Holt, Long v., 68 — 53 — 33i. 35^ 

Holt. Ropers v.. Phil. Eq., 108 380 

liomesly, Rowark v., 68 — 91 -147. '53 

Honeycult v. Angel> 4 D. & B., 306 •. , 412 

Hooker, McAden v., 74 — 24 69, 359 

Hooper, Cherry v>, 8 Jones, 82. i8jt> 

Hooper V. Miller. 76 — ^402 155. 157 

Hoover v. Berryhill, 84—182 87. 88, 90 

Hoover, Brown v., 77 — 40 297 

Hoover v. Palmer, 80—313... ^ 144 

Hoppock v. Shober, 69—153 ^ 247, 248 

Home V. Home, 72—534 336 

Home V. Home, 75 — 101 133, 371 

Homthal v. McRae, 67 — 21 36 

Horton v. McCall, 66—159 299 

Honon. Ray v., 77—334 I57, 158 

Horton, State v., 89—... 328 

Horton v. White, 84 — 297 171. 199 

Hoskins v. Wall, 77 — 249 297, 301 

Houghtaling, Knight v., 85—17 28, 81, 242, 364 

House, Parker v., 66 — 374-.* 205 

Houston, Branch v.. Bus., 85 96 

Houston. Harkey v., 65 — 137 10, 47, 53, 80, 83, 112, 206, 240 

Houston V. Howie. 84 — 349 342 

Houston V. Porter, 10 Ire., 174 * 188 

Houston V. State, 66 — 231 393 

Houston V. Walsh, 79—35 143, 145, 147, 257, 260 

Howard, Day v., 73 — i - 17 

Howard, Folk v., 72 — 527 .- 63, 409, 380 

Howard. Manix v., 79 — 553 156 

Howard, Manix v., 82 — 125 ^ 64, 139, 156 

Howard, Robinson v., 84 — 151 399, 401 

Howell, Brittain v., 2 D. & B., 107 65 

Howell V. Buie. 64 — 446 12 

Howell V. Ferguson, 87 — 113 64,105 

Howell V. Harrell, 71 — 161 134 

Howell, Perkins v., 5 Ire. Eq., 24 175 

Howell V. Ray, 83—558 340. 420 

Howerton v. Henderson, 86^718 325, 326, 339, 345, 346. 352 

Howerton v. Lattimer, 68 — 370 374, 375 

Howerton v. Sprage, 64 — ^451 176 

Howerton v. Tate, 66 — 231 8. 9. 400, 402 

Howerton v. Tate, 66—43 1 62 

Howerton v. Tate, 68 — 546 ^-- 394 

Howerton v. Tate, 70 — 161 395, 396 

Howes V. Mauney, 66-^218 170, 198 

Howey v. Miller, 67-^459 283. 287 

Howie, Houston v., 84 — 349. 342 

Howie V. Rea, 70—559 92, loi 

Hubbs, Bryan v., 69 — 423 109, 168, 249, 253, 257, 258, 260, 262, 337, 

345. 351. 352 

Hubbs, Patterson v., 65 — 119 167, 392, 393, 395, 410 

Hutchison, Bank v., 87 — 22 113 

Hutchison v. Rumfelt, 82—425 344, 417, 418 

Hutchison v. Rumfelt, 83 — 441 _ 130, 339 

Hutchison, Wilson v., 74 — ^432 327 

Hudgins v. White, 65—^393 128 

Hud^n v. Wetherington, 79 — 3 210 



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CASES CITED. XXXV 



PAGE. 

Huey, Molyneux v , 8i — io6 128, 130, 374 

Huffstellcr, Carpenter v., 87 — 273 ,.. I2I, 123, 124, 242 

Huffsteller, Clerk's Office v., 67—449-'-- 5. 349. 352, 354 

Hughes V. Boone, 8i — 204 48, 239 

Hugljes, Brower v., 64 — 642 :.._ 373 

Hughes, Gram v., 82 — 216 - 261, 298 

Hughes, Kingsbury v. , Phil. . 328 390 

Hughes, Hawkins v., 87 — 115 51, 85. 87, 95 

Hughes, Martin v., 67 — 293 296, 300. 305, 306 

Hughes, Nelson v., 2 Jones Eq., 33 ,.. ^ 266 

Hughes, Newsom v., 86 — ^424 25, 160 

Hughes V. Person, 63—548 144, i8o 

Hughes V. Whilaker, 84 — 640 . , 28 

Hull V. Carter, 83 — 249 , ,.--.97. 102, 104, 207, 212, 334 

Humble v. Mebane, 89 — 410, 233, 234 

Humphrey, Murrell v., 76^ — ^414 126, 407, 408 

Humphrey, Thompson v., 83 — 416 - 375 

Hunt, Blankenship v., 76— -377... 40 

Hunt, Falkner v., 68 — 475 331, 410 

Hum, Hayes v., 85-^303 ,.-,r 267, 268 

Hunt, People v., 73 — 24 „ 89 

Hunt V. Snead, 64 — 176 , , ,....8 

Hunt, Smith v., 68 — 482 302, 303, 304, 306 

Hunt, Tuck v., 73—24 .-....- 84 393 

Hunter, Williams v., 3 Hawkins, 545 183 

Hurdle, Outlaw v., i Jones, 150 .,. 218 

Hurst V. Addington, 84 — 143 - 91, 105, 207 

Hussey, McGee v., 5 Ire., 255 265, 266 

Hutchinson v. .Smith, 68 — 354 104, 203, 239 

Hutchinson, Sprinkle v., 66 — 450 8, 167 

Hutchinson v. Symons, 67 — 156 249, 264, 265, 282, 283, 285, 289 

Hyatt, Barnes v. , 87 — 315 ^ 260 

Hyatt V. Tomlin, 2 Ire., 149 , 76 

Hyman v. Capchart, 79 — 511 ^ 130 

Hyman v. Devereux, 63 — 624 , 84 

Hyman v. Devereux, 65 — 588 173, 315 

Hyman V. Jamigan, 65—96 ^ 8, 45, 74 

Hyman, Lawrence v., 79 — 209 , ,.. 236,372 

Ihrie, Mauney v., 7^—299 , r i.. 248 

Ingram, Covington v., 64 — 123 241,410 

Ingram, Hanna v., 8 Jones, 55 , 67 

Ingram, Mauney v., 78 — 96 85^ lOO, 156 

In re, Daves, 81—72 288, 294, 332, 334 

Insurance Company, Bronson v., 85 — 411. 49, 88, 123, 124, 284, 290 

Insurance Company, Churchill v., 88-^-205 130, 131 

Ilisurance Company v. Davis, 68 — 17 ^^158, 185 

Insurance.Company V. Davis, 74 — 78 6. 149, 163 

Insurance Company, Jones v., 88 — 499 ,. 68 

Iseley, Holt v., 63 — 129 86 

Isenhour v. Isenhour, 64 — 640 , 373 

Isler v. Brown, 69 — 125.- ^ .--133. 382 

Isler v. Brown, 66 — 556 76 

Isler v. Colgrove, 75—334 248 

Isler V. Dewey, 67 — 93 - 373 

Isler v. Dewey, 79—1 215, 333 

Isler v. Dewey, 84 — 345 16 

Isler v.. Foy» 66 — 547 47, 53 

Isler y. Haddock,. .72^1 19. _ . ^ 343 

Isler V. Koonce, 83 — 55 , 48, 125, 228 



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XXXVI CASES CITED. 



PAGE. 

Isler V. Murphy, 71—436 45, 213, 228, 255 

Islerv. Murphy, 76—52 53» 79. I37. 138 

Ivey V. Cranberry, 66—223 100 

Ivy V. Cox, I Dev. Eq., 58 30 

{ackson, Adrian v., 75 — 536 31^9,411 
ackson v. Buchanan, 89 — 74 159 

{ackson v. Evans, 73 — 128 373 
ackson v. Love, 82 — ^405 40 

J ackson. Perry v. , 84 — 230 374 

Jackson, Perry v., 88 — 103 277, 335, 337 

Jackson, Purvis v., 69 — 474, 254 

Jacobs V. Burcwyn. 63 — 196 132, 229, 230, 241, 340 

Jacobs V. Smallwood, 63 — 112 86, 299 
acobs, Statcv., Bus., 218 327 

{ames, Gilbert v., 86 — 244 225 
ames, Teague v., 63 — 91 6 

J ames v. West, 76^290 297 

James, Williamson v., 10 Ire., 162 265 

Jarman V. Saunders, 64 — 367 134, 164, 169. 380, 381 

Jarman V. Ward, 67 — 32 143, 155, 157, 158, 159,245 

{amigan, Hyman v., 65 — 96 8, 45, 74 
arvis, Brigman v., 8 Ire., 451 329 

Jarvis, Edwards v., 74 — 315 12 

iasper. Hardy v., 3 Dev., 158 263 
efferson, State v., 66—309 327 
enkins. Bank r., 64 — 719 331 
enkins, Bayne v., 66 — 356 -..402 

Jenkins v. Bobbitt, 77 — 385 295, 296 

Jenkins v. Carter, 70 — 500 8 

Jenkins, Harris v., 72 — 183 131 

Jenkins v. Ore Dressing Co., 65 — 563 120, 218, 333 

Jenkins, Railroad v., 65 — 173 * 401, 403 

J enkins. Railroad v. , 68 — 502 401 

Jenkins, State v., 85—544 223 

Jennings V. Hardin, Bus. Eq., 275 265 

Jernigan, Hare v., 76^471 239, 240 

Jimmerson V. Duncan, 3 Jon., 537 266 

Johnson v. Ball, 74—355 - 97. ^01, 333 

Johnson, Bullard v., 65 — 436 125 

Johnson v. Rankin, 70—550 168, 350, 400, 402 

Johnson v. Cross, 66—167 S^S. 3^ 

Johnson v. Duckworth, 72 — 244 132, 332 

Johnson, Fai.son v., 78 — 78 127 

Johnson, Harris v., 65 — ^478 84, 87 

Johnson v. Jones, 75 — 206 168 

Johnson v. Judd, 63 — ^498 108 

Johnson V. Kennedy, 70^435 62, 100, 139 

Johnson v. Mangum, 65 — 146 .41 

Johnson V. Maxwell, 87 — 18 114, 335 

Johnson v. McArthur, 64 — 675 6, 99 

Johnson v. Nevill, 65 — 677 261 
ohnson v. Parker, 79 — 475 --12, 16 

Johnson V. Ray, 72 — 273 225 

{ohnson V. Rowland, 80—1 102, 127, 356 
ohnson, State v.. i Ire., 354 226 

Johnson v. Winslow, 63 — 552 I2 

Johnston, Barnard v., 78 — 25 353 

Johnston, Clayton v., 82 — ^423 340, 418 

Johnston v. Commissioners, 67 — loi 55, 403 



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CASES CITED. XXXVII 



Johnston v. Futrell, 86—122 67 

Johnston, Green v., 2 Hawks, 309 , 262 

Johnston v. Haynes, 68 — 509 ^ 231 

Johnston v. Jones, 87—393 12, 23, 255, 367 

Johnston, Lewis v., 69— -392 320 

J' ohnston v, Neville, 68 — 177 336 
ohnston, Osborne v., 65 — 22 14 

Johnston V. Pace, 83—110 19, 80, '84, 91, 105, 207 

Johnston v. Smith, 86 — ^498 - 94 

Johnson, State v., i Ire., 354 223 

Johnston, Williams v., 82 — 288 376 

Jolly V. Bryan, 69 — 457 18, 26, 318 

Jones. Ba^er v., 66—305 8 

Jones, Badham v., 64 — 655 274 

Jones V. Boyd, 80—258 175, 228, 237. 335, 353, 354 

Jones, Bradley v., 76 — 204 345, 413 

Jonesv. Call, 89 — 188 336, 412 

Jones V. Cameron, 81 — 154 164 

Jones ▼. Carland, 2 Jones Eq,, 502.--. 276 

Jones, Cheatham v., 68 — 153 296 

Jones, Clayton v., 68—497 204, 207, 383 

Jones V. Cohen, 82 — 75 106 

Jonesv. Com'rs, 69 — 412 55, 57 

Jones V. ComVs, 73 — 182 93, 115 
ones V. Com'rs, 85—278 91, 94, 95, 382 

Jones V. Com'rs, 88 — 56 358 

Jones, Deans v., 6 Jones, 230 405 

Jones v. Fortune, 69 — 322 83, 208 

"ones, Green v., 78 — 265 236 

ones v. Gupton, 65 — 48 61,62, 139, 249, 386, 390 

ones, Hartsfield v., 4 Jones, 309 206, 319, 326, 356 

ones V. Hemphill, 77 — 42 no, in, 210 

ones V. Henry, 84 — 320 367 

ones V. Hill. 64 — 198 170, 171 

Jones V. Holmes, 83 — 108 343 

Jones V. Insurance Co., 88 — 499-.- 68 

Jones, Johnston v., 75 — 206 168 

'[ones, Johnston v.. 87 — 393 12, 23, 255, 367 

] ones V. Jones. 80—127 396 

Jones V. Judkins. 4 D. & B., 454 263 

Jones, Leach v., 86—404 295, 299, 347 

Jones, Mayo v., 78—406 137, 315, 322 

Jonesv. McClair, 64 — 125 62 

]fones v. McKinnon, 87 — 294 43, 124 

Jones, McLeran v., 3 Jones Eq., 195 ^ 325 

Jonesv. Mial, 79 — 168 81, 242 

Jonesv. Mial, 82 — 252 79. 81, 122, 135, .242, 317 

Jones, Moore v., 76—182 390, 401, 402 

Jones, Porter v. , 68 — 320 66 

Jones v. Penland, 2 D. & B., 358 76 

Jones, Petty v., i Ire., 408 327 

Jonesv. Potter, 89 — 220 352 

Jones V. Putney, 3 Mur., 562 15 

Jones, Reese v.. 84 — 597 64, 334 

Jones v. Shaw, 84 — 218 340 

Jones, Shannon v., 12 Ire., 206 267 

Jones, Steadman v., 65—388 330, 354, 355 

Tones, Southerland v., 6 Jones 321 405 

Jones, Statev., i Ire., 129 399 



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XXXVni CASES CITED. 



PAGE. 

Jones, State v. , 69 — 16 -.. - 415 

Jones, State Vi^ 82 — 691 - 340. 420 

Jones, State v., 87—547 *^^ 

Jones, State v., 88 — 683 67, 76 

Jones V. Thorne. 80—72 166, 381, 410 

Jones V. Swepson, 79 — 510 128, 132 

Jones V. Ward, 77 — 337 157. ^5^ 

Jones, Weaver v., 82—^440 13' 

Jones, Whisenhunt v., 78 — 361 203, 262 

Jones, Whisenhunt v., 80 — 348... 34' 

Jones, White v., 88—166 277 

Jordan, WeHons v., 83 — 371 341 
ordan. Woody v., 69—189 62, 67, 87, 100, 146, 157, 158, 242, 284, 386 

Joyce, Matthews v., 85—258 45,65. 141. 241 

Joyner, Patrick v., 63 — 573. 61, 171 

'udd, Johnson v., 63 — ^498 108 

udkins, Jones v;, 4 D. & B., 454 263 

Justice V. Bank, 83—8 3^5 

Justice V. Eddings, 75—581 41. 83, 20S 

Justice, Miller v. , 85 — 25 383 

Justice, Miller v., 86—26 203 

Kahnweiler V. Anderson, 78 — 133 ....13, 28 

Katzenstein v. Railroad, 78 — 286 - 68 

Kearsey, Edwards v., 74 — 241 299 

Kearsey, Edwards v., 75 — 409 299 

Kearsey, Edwards v., 96 U. S., 595 - 297, 299 

Keath. Statev., 83—626 - 225. 341 

Keathley v. Branch, 84 — 202 47 

Keathley V. Branch, 88—379 '°3. I04, 122 

Keaton v. Banks, 10 Ire., 381 132 

Keener V. Finger, 70 — 35 209, 213, 231, 234 

Keeter, State v., 80—479.. 34i» 345 

Keeter V. Railroad, 86—346 384 

Keener V. Goodson, 89—273 231, 232, 237, 240, 241. 299, 407 

Keith, Deaverv., Phil., 428 67 

Keith, Rice v. , 63 — 319 370 

Kelly, Berryman v., 13 Ire., 269 15 

Kellyv. McCallum, 83—563 120 

Kelly, Fraley v., 67—78 ..- 36 

Kelly, Fraley v. , 79 — 348 • 3^ 

Kelly, Fraley v., 88—227 297 

Kelly, Thomasv., 74—416 53. 372 

Kelly, Turpin v., 85—399 - ^53 

Kendall v. Briley, 86—56. 22 

Kenan, Pearsall v., 79 — ^472 12, 13, 19 

Kendall, Gates v., 67— 241... II5. 135. 242 

Kennedy, Charles v., 64 — 442 91 

Kennedy, Currie v. , 78—^1 , 362 

Kennedy, Johnson v., 70 — 435 ....i 62, 100, 139 

Kennedy, Statev., 89— 329 

Kennedy V. Wheatlcy, 2 Hay., 402 - 19 

K erchner V. Baker, 82 — 1 69 1 30. 1 3 ^ 

Kerchner y. Fairley, 80 — 24 198 

Kerchner v. McRae, 80—219 : 218 

Kerchner, Oldham v., 79 — 106 - 344 

Kerr, Williams v., 88—10 - 274 

Keslcr, Hill v., 63—437. ^99 

Kesler v. Mauney, 89— 369 - 375 

Kesler, School Committee v., 66 — 323 209, 21 1» 212, 217, 333 



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CASES CITED. XXXIX 



PAGE. 

Kidd V. Morrison, Phil. Eq.,.3t 332, 336^ 

Kidder V. Mcllhen.ny, 81 — 123 211. 257, 334 

Kilbum, Mitchell v., 74—483 332 

Kilpatrick, Ballard v., 71-^281 ,., 140 

Killebrew, Knight v., 86—400 ,,,, 335 

Kincaid v. Conly, Phil. Eq., 270 428 

Kincaid v. Conly, 64—387 ,,-,,...... 428 

Kincaid v. Perkins, 63 — 282 .-^ 32 

King. Bidwell v., 71 — 287 56 

King, Bell v. , 70—330 , 8 

King, Chrisicnbury v. , 85 — 229 .,,, ,.--, , 17 

King V. Farmer, 88 — 22 , ^ 118 

King V. King. 84—32 70 

King V. Little, 77—138 • •. 405 

King. McDaniel y., 89 — 29. .. . 326, 341, 402 

King V. Neuse Manf 'g Co., 79 — 360 237 

King, Norwood v., 86—80 » . 130 

Kingv. Page. 86— 725... .. , 344 

King V. Portis^ 77 — 25 ,..,...,.., .247 

King. Ring v., 4 D. & B., 164 15, 221, 341 

King.. Sharpe v., 3 Ire. Eq., 402. 175 

King, State v., 5 Ire.^ 203. , 340 

Kingsbury v. Hughes. Phil., 328 ,,,--, - 390 

Kinsland. Webb v., 89— 153 

Kinsland, Welch v.. 89 — 179 ^ 203, 332, 383 

Kinnery, Lambert v., 74 — 349 ,,.,,..,,.,,, 83, 208, 295, 302 

Kirby v. Mills, 78— 124 ,., ,,.,,,, 36, 212 

Kirk V. Bamhardt, 74—653 , ,,,.,,.., 344, 375 

Kirkham v. Cox, i Jon., 423, 183 

Kirkland, Hogan v., 64 — 250 100, 285 

Kirkland v. Hogan, 65 — 144 , , 69 

Kirkman v. Dixon, 66- -406 , 133, 342 

Kitchie, Overcash v., 89 — 384 411, 412 

Kitchen, Gilchrist v., 86 — 20 64, 125, 128, 140 

Kitchen v. Tyson, 3 Mur., 314 ^--.378 

Kitchin v. Wilson, 80—191 12, 15, 17, 96 

Kivett, Williams v., 82 — no 342 

Kivett V. Wynne, 89 — 39 410 

Kline. Fox v., 85—173 _• 22, 53, 168, 249, 274 

Knight V. Braswell, 70-1-709 ii. 12. 23. 26 

Knight V. Houghtaling. 85 — 17 28, 81, 242, 364 

Knight V. Killibrew, 86 — 400 ..., 335 

Koonce v. Butler, 84 — 22i 132 

Koonce, Colgrove v., 76—363 49, 52, 409 

Koonce, Isler v., 83—55 4S, 125, 228 

Koonce. Noble v., 76—405 315 

Koonce v Pelletier, 82 — 236 .* 329 

Koonce, Winbury v., 83 — 351 249 

Kull V. Farmer, 78 — 339 36 

Ladd V. Adams, 66 — 164 299 

Lafferty, Burwell v., 76—383 71, i8i 

LaFountain V. Underwriters, 79 — 514 284, 288 

LaFontaine v. Southern Underwriters, 83 — 132 235, 287, 289, 294, 387 

Lambv. Chamness, 84 — 379 297 

Lambert v. Kinnery, 74 — 348 83, 208, 295, 302 

Lancashire, McCaskville v., 83 — 393 48, 49 

Lane v. Morton, 78—7 , 127, 356 

Lane v. Richardson, 99—159 I2, 35, 36, 73 

Langford, State v., Bus.. 436 , . . . .341 



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XL CASES CITED. 



PAGE, 

Lanier, Henly v., 75 — 172 36 

Lanier, Simonton v., 71 — ^498 . , 12S 

Lanier, State v., 89—517 202, 205, 412 

Lanier v. Stone, i Hawks, 329 267 

Lanier, Williams v.. Bus., 30 405 

Larkins v. Bullard, 88 — 35 132 

Lash, Com'rs v., 89 — 218, 220, 224, 372 

Lash, Miller v., 85 — 51 26 

Lash V. Thomas, 86—313 5 

Lassiter, University v., 83 — 38 130, 204, 205, 206, 207, 228, 236, 285 

Latham, Clark v., 8 Jon., 1 154 

Latham v. Dixon, 82 — 55 255, 376 

Latham, Hahn v., 87 — 192 325, 339, 355 

Latham, Lewis v., 74 — 283 13 

Latham v. Whitehurst, 69—33 177 

Latham, W'hitchead v., 83 — 232 249 

Lattimer, Howerton v., 68 — 370 374, 375 

Lattimer, VonOlahn v., 73 — 333 46 

Laughlin, Daniel v., 87 — 433 ; 23, 24, 33. 255 

Lawrence v. Hyman. 79 — 209 236, 372 

Lawrence, McRae v*, 75 — 289 210 

Lawrence, Shields v., 72 — ^43 59, 405 

Lawrence, Shields v., 82—516 221 

Lawrence, Weiller v., 81—^5 127, 138, 384 

Lawrence, Weiller v., 81 — 65 282, 283, 285 

Laws V. Thompson, 4 Jon., 104 275 

Laws, Webster v., 86—178 67, 87 

Layton, Mebane v., 86 — 571 46, 90, 117 

Layton, Mebane v., 89 — 396 412, 413 

Laxton, State v., 78 — 564 223 

Leav. Brooks, 4 Jones, 423 316, 355 

Lea, Farley v., 4 D. & B., 169 247, 264 

Lea, Neal v., 64 — 678 41, 98, 101, 102 

Lea V. Pearce, 68 — 76 115, 203 

Leach v. Com'rs, 84 — 829 401 

^Leach v. Jones, 86^404 295, 299, 347 

Leach V. Fleming, 85 — ^447 91 

Leach, McLean v., 68 — 95 103 

Leach V. Railroad, 65— 485 * 54. 81,205, 242 

Leach, Womble v., 83 — 84 ^ 80 

Leak v. Com'rs, 64 — 132 93 

Leak v. Covington, 87—501 233, 335 

Ledbetter v. Arledge, 8 Jones, 475 262 

Ledbctterv. Osborne, 66— 379 134, 329, 330 

Lee, Ashcraft v., 79 — 34 332 

Lee, Ashcraft v,, 81 — 135 332 

Lee V. Beaman, 73 — 410 107 

Lee V. Bishop, 89—257 --249, 250 

Lee, Churchill v., 77 — 341 157, 158, 210 

Lee V. Eurc, 82 — 428 255 

Lee, Flanniken v., i Ire., 293 15 

Lee, Wilder v., 64 — 50 169, 250 

Leggett V. Glover, 71 — 211 377, 378 

Ltggctt V. Leggett, 66—420 - 228 

Leggett V. Leggett, 88—108 218 

Leggett, Watts v., 66 — 197 1296, 308 

Leggett, Wharton v., 80—169 308 

Lemly, Com'rs v., 85—341 58, 59, 332, 365, 366 

Lenoir V. South, 10 Ire.. 237 15 



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CASES CITED. XU 



PAGE. 



LcdU, Phillipsv.,83— 240 59 

Levenson v" Elsan, 88 — 182 199 

t^wis, Busbec t., 85—332 86 

Lewis V. Fort, 75—251 375 

Lewis V. Johnson, 67 — 38 320 

Lewis V. Johnston, 69 — 392 320 

Lewis V. Latham, 74 — 283 13 

Lewis V. McNatt, 65 — 63 6, 49, 87, 94, 9| 

Lewis V. McDowell, 88—261 8t 

Lewis, Kobeson v., 64 — 734 345, 351 

Lewis, Robeson v., 73 — 107 239 

Lewis Y. Rountree, 81 — 20 ". 437 

Lewis, Setzer, 69 — 133 39, 20Q 

Libbett V. Maultsby, 71—345 H 

Lilly V. Baker, 88 — 151 I2i, 126 

Lilly, Bates v., 65—232 53. 353 

plly, Oates v., 84 — 643 26 

Lindley v. Railroad, 88 — 547 353 

Lindsay v. Moore, 83 — 444 328 

Lindsay, State v., 7^—499 33i. 333. 334 

Linebcrger v. McKee, 69—217 120 

Lineberger, McKee v., 87 — i8i 372, 374 

"Jneberger, Wiley v., 88 — 68 ...... 320 

Jncberger, Wilson v., 82 — 412 85, 91, 333 

Jnebergcr, Wilson v., 84 — 836 327 

Linker v. Benson, 67 — 150 17. 365 

Jppard V. Roseman, 70 — 34 231 

Jppard V. Roseman, 72—427 126, 213. 231, 333 

tippard v. Troutman, 72 — 551 12, 20, 21, 32, 42 
ipsey. State v., 3 Dev., 485 22^ 

Lipton, Edwards v., 85 — 479 17 

Linster. Wasson v., 83 — 575 139 

Liscnbee, Roberts v., 86— J36 51 

Litaker, Goodman v., 84 — 8 23, 26 

Little Coomer v., Conf., 92 .407 

Little V. Duncan, 89 — 416 , 407 

Little, King v., 77—138 405 

Little V. McCarter, 89 — 233 240, 242, 409 

Littlefield, Backalan v., 64—233 177, 178, 184, 185 

Littleiohn v. Egerton, 76 — 468 192 

Littlejohn v. Egerton, 77 — 379 300, 302, 307 

Livingston v. Parish, 89 — 140. 1 56 

Locke, State v., 77 — 481 223 

Locke, State v., 86—647 • • • • '327 

tA>ckhart v. Bell. 86—443 374 

Locust, State v., 63—574 8 

Lof tin V. Cobb, i Jones, 406 I5 

Loftin V. Sowers, 66 — 251 ', 391 

Logan, Dougherty v., 70 — 558 248 

Logan, Egerton v., 81 — 172 28 

Logan V. Fitzgerald, 87 — 308 12, 14 16, 226 

Logan, Gidney v., 79 — 214 371 

Logan, Long v., 86—535 237, 238, 335 

Logan, Twitty v., 80—69 .199 

Logan, Twitty v., 85 — 592 337 

Logan, Twitty v., 86—712 133 

Logan V. Wailis, 76—416 50, n8, 119, I20 

t^an, Wittkowski v., 86—540 335 

Lloyd V. Durham, 60—282 298 

F 



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XLII CASES CITED. 



PACK. 

Lomax, Barham v., 73 — 76 ... 13, 28, 210 

London v. Bear, 84 — 266 .' 19 

London v, Wilmington, 78 — 109 167 

Long V. Bank, 81 — 41 13. 45. 332 

Long V. Bank, 85—254 408 

Long, Capcli v., 84 — 17 26 

Long V. Cole, 72 — 20 380 

Long V. Cole, 74 — 267 129 

Long, Cox v., 69 — 7 92, loi 

Long V. Gooch, 86--709 335 

Long V. Holt, 68—53 331. 352 

Long V. Logan, 86 — 535 237, 238, 335 

Long V. Long, 85 — 415 133, 241, 318 

Long, Maddrey v., 86—383 47, 53 

Long V. McLean, 88 — 3 144, 147 

Long, Mode v., 64 — ^433 18 

Long V. Orrell, 13 Ire., 123 34 

Long, Stump v., 84 — 616 ^ 132 

Long, State v.. 76—254 394 

Long V. Swindell, 77 — 176 47, 90, 239 

Lookabill, Stith v., 71 — 25 207, 212, 333 

Lord V. Beard, 79 — 5 380 

Lord V. Meroney, 79 — 14 380 

Loudermilk, Holcombe v., 3 Jon. , 491, 273 

Love V. Com'rs, 64 — 706 85, 91, 93. 94. 95, 123 

Love V. Dickerson, 85 — 5 210 

Love, Garrett v.. 89 — 205 410 

Love V. Harbin, 87 — 249 376 

Love, Jackson v., 82 — 405 ',.46 

Love V. Rhyne, 86— 576 98 

Love V. Young, 69 — 65 180, 181 

Lovinger v. Pearce, 70^167 no, 331 

Low, Smith v., 2 Ire., 457 66 

Lowe v. Com'rs, 70^532 167. 175 

Lowe, Lynn v., 88 — 478 13, 132, 325 

Lowery v. Perry, 85 — 131 92 

Lowery, Erwin v., 64 — 321 97, 104, 126, 207, 212, 383 

Lowrv, Charlton v. Mart, 25 379 

Lowther, Gordon v., 75 — 193 87. 92, 405 

Lucas, Bryson v., 85 — 397 351 

Lunceford v. McPherson, 3 Jon,, 174 325 

Lunsford, Sutliff v., 8 Ire., 318 341 

Lupton, State v., 63 — 483 8 

Lusk V. Clayton, 70—184 231, 237, 240 

Lusk v. Patton, 70 — 701 100 

Lute v. Reilly, 65—20 302, 307 

Lutterloh v. Commissioners, 65 — ^403 399, 401, 402, 403 

Lutz V. Cline, 89 — 186 336 

Lynn v. Lowe, 88—478 13, 132, 325 

Lynn, Smith v., 84—837 327 

Lyon v. McMillan, 72 — 392 383 

Lyon V. Russ, 84 — 588 22, 249 

Lyon, Smith v., 82 — 2 324, 339. 427 

Lytic v. Bergen, 82 — 301 47. 53 

Mabry v. Erwin, 78 — 45 128, 131. 205 

Mabry v. Henry, 83—298 134. 381. 382 

Mace, Neal v., 89 — 171 340. 344 

Macey, ex parte^ 83 — 63 367, 374 

Macey, Busbee v., 85 — 329 86 



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CASES CITED. XLIII 



PACK. 

Macey, Gully v., 81—356 42, 45, 69, 138 

Macey. Gully v., 84 — 434 376 

Macey, Gully v., 86--721 207 

Macey, Gulley v., 89—343 317, 412, 413 

Macy, Welch v., 78—240 305, 308 

Macon. Bachelor v., 67 — 181 47 

Maddrey v. Long, 86 — 383 47, 53 

Magee, Patapsco v., 86—350 156, 245, 318 

Magnin, Commissioners v., 78 — 181 39, 332 

Magnin, Commissioners v., 85 — 114 210, 231, 233, 235, 334 

Magnin, Commbsioners v., 86 — 285 39 

Malloy V. Bruden, 86^251. 15, 16, 19 

Malloy, McRae v., 87—196 318 

Malonc, Shehan v., 71 — 440 96, 105, 207, 236, 341 

Malone, Shehan v., 72 — 59 222 

Mangum v. Hamlett, 8 Ire., 44 263 

Mangum, Johnson v.. 65-7-146 41 

Manulacturing Company, Crawford v., 88 — 560 353 

Manufacturing Company, Wilson v., 88 — 5 178, 179, 193 

Manix v. Howard, 79 — 553 156 

Manix v. Howard, 82 — 125 64, 139, 156 

Mann v. Blount, 65 — 90 101 

Manning V. Manning, 79 — 293. . . : 42 

March, Burton v., 6 Jones, 409 225 

March v. Thomas, 63 — 249 327, 329 

March v. Vcrble, 79 — 19 126, 224. 374 

Mardre v. Felton, Phil., 279 390 

Mardrc, Potter v., 74 — 36 155, 157. 158 

Marley, State v., 8 Ire., 48 326 

Marlow, Mastin v., 65 — 695 332 

Marsh v. Cohen, 68 — 283 109, 329 

Marsh. Fraley v., 68 — 160 54 

Marsh v. Williams, 63 — 371 177, 178, 180, 181 

Marshall, Bullinger v., 70—520 .10 

Marshall V. Commissioners, 89 — 167, 170, 175 

Marshall, Davis v., 2 Hawks, 59 327 

Martin v. Chasteen, 75 — 96 346, 347 

Martin, Chastain v., 81—51 207, 213, 228 

Martin Chasteen v., 84 — 391 341 

Martin, Chastain v., 89 — 453 228 

Martin, Childs v., 68—308 333, 383 

Martin, Deep River Copper Company v., 70 — 300 192 

Martin V. Hughes, 67 — 293 296,300,305, 306 

Martin v. Meredith, 71 — 214 296 

Martin V. Milboum, 66^321 ^ 211, 233 

Martin, Mull v., 85 — 406 376 

Martin V. Richardson, 68—255 41, 98 

Martin, Sprinkle v., 6i5— 55 265 

Martin v. Sloan, 69 — 128 172, 413 

Martin v. Young, 85 — 156 34, 125 

Mask V. Tiller, 89—423 407, 408 

Mason v. McCormick, 75 — 263 44, 376 

Mason v. McCormick, 80—244 373 

Mason v. Miles, 63 — 564 164, 380 

Mason v. Osgood, 71 — 212 346, 347 

Mason v. Osgood, 72 — 120 - 343 

Mason, Pcarce v., 78 — 37 83, 95, 124, 126, 128 

Mason v. Pelletier, 80—66 427 

Mason, Stanly v., 69 — 1 56, 57 



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XLIV CASES CITED. 



PAGE. 

Massey, Barham v., 5 Ire., 192 26$ 

Massey, McNeill v.. 3 Hawks, 91 226 

Massey, West v., 7 Jones, 143 : 298 

Mastln t. Marlow, 65—695 : 332 

Mathis. Pop* v., 83 — 169 , :. 17 

Matthews t. Copeland, 80—30 : : 6, 124 

Matthews, Hodgiti v., 81 — 289 : : : 130 

Katthewsv. JOyC6. 85—258 :--.45, 65, 141, 24i 
atthews V. Matthews, 4 Ife., 155 : 3^6 

Matthews, State V., 78—523........: : : 226 

Matthews, State v., 80—417 .: 224 

Matthews, State v., 82—672 218 

Matthews V. McPherson, 65—189 : :... io, 53 

Maultsby, Libbett v., 71—345 : : it, 30 

Maultsby, Wboten v.. 69—462 50. 90. "9 

Mauney V. Colt, 86—463 .....:.. :..... --....39 

MaUiiey V. Cotti'rs, 71—486 164, 174, 40? 

Mauri^y V. Gidne^r, 86—717 : 35^. 4^7 

Mauney V. Gidney, 88—200 .131, tj3 

Manney v. Holmes, 87—428 :...:..: :--r-33. 7} 

Mauney, Howes v. 66—218 :...:... 170, 198 

Mauney V. Ihrie, 76—299 i.-..^: : 249 

Mauney V. Ingram 78—96 ...: 85, 100, 156 

Mauney, Kesler v., 89 — 369 : 375 

Mduney ^. Pemberton, 75 — 219 ...1 14<>, 3^0 

Maxwell v. Caldwell, 72—450 3^3 

Maxwell, Johnson v., 87—18 ..:...: :-.ii4. 3^5 

Maxwell v. Maxwell, 67 — 383 : : :...: 232, 236 

Maxwell V. McDowell, 5 Jon., 391 :... 365 

Maxwell, Peoples v., 64—313 .:.: ::: : -.-373. 374 

Maxt^ell, Skinnet v., 66—45 : 199 

Maxwell, Skinner v., 67—257 ^--S^S. 328» 339 

MatxWell, Skinner v., 68—400..: 198 

May V. Darden, 83—237 :.: ....:. .332, 354 

May, St^e v., 4 Dev., 328 ..:..:: ^25 

Mdyers v. Carter, 87— 142 :. :.. .1.-267 

Mayers, Pearsall v„ 64—549 --- :..:..,: 100 

Mayho V. Cotton. 69—289 :...:. ^95. 3o<J 

Mayo V. Jones, 78—406 . 137. 315. 322 

McAdenv. Bannister, 63—478 ::.io8, no, Hi, 229, 230, 250, 259 

McAden V. Hooker, 74—24.. ., : -^--69, 3S9 

McAdoo V, Benbow, 63 — 461 : : i6, 62, 108 

McAdoo, Hantier v., 86 — 370 :...:-..: 236 

McAdoo, Ponton v., 71— loi : --^75 

McAffee V. Bettis, 72—28 :.: 296, 308 

McAlister V. DeVane, 76 — 57 ^ : i-.-iJ 

McArthur, Campbell v., 2 Hawks, 33 : .;...:, ..15 

McArthur. Davis v., 78—357 ::.: : 15. 16 

McArlhuf, Johnsoh v., 64—675.. -. ::-.6, ^ 

McArthurv. McEkchln, 64—72... ......:::..:..:... 61, 62. 172, tjj 

McBtydev. Paltersoti, 73—478 :.-..:..: :.:.::.. 219 

McBrydev. Patterson, 78—412 :..-. :...:333 

McCadden, Critchcr v., 64—262... : 329 

McCall, Norton v., 66—159 :.-.: :.:.:.... 299 

l^lcCallum, Kelly v., 83—563 :...: : -.120 

McPdmpbellv. McClbng, 75—393 - ----- :-:-235. 238 

McCanless V. Reynolds, 74 — 301 : :...;:..:. 376 

McCartet, LitUe v., 89— 233 .240, 242, 409 

McCaskillv. Lancashire, 83—393 :..: :48; 49 



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CASES CITED. XLV 



PAGE. 

McClkir, Jones v., 64 — 125 6i 

McClees, Ransom v., 64 — 17 • : 84,94,95, 103, 123 

McClenahan V. Cotten, 83 — 332 23, 83, foi, io2 

McCIenahan, Cotten v., 85—254 13, 23, 249, 360 

McClung, McCampbell v., 75 — 393 :.. :._ 23S, 238 

McCoinbs, Sudderth v., 67--353 : 346, 344, 345^410 

McConiiaughey v. Chambers, 64 — 284 41, 9$ 

McConnell v. Caldwell, 6 Jon., 469 :.. : --325 

McCohnell v. McConnell, 64 — 342 : ij 

McCorkle v. Brem, 76 — 407 ..166; 168 

McCormac v. Wiggins, 84—278 : : :--42, 48, 8d 

McCormick, Mason v., 75 — 263 : 44, 37P 

McCormick, Mason v., 80 — 244 373 

McCormick V. Monroe, 3 Jon., 332 _ : : 15 

McCormick v. Nixon, 83 — 113 :.--. :--.l70, 17X 

McCormick, Wright v., 67 — 27 : ....iij 

McCox. Stilley v., 88—18 :...: 223 

iJfcCoy, Wiggins v., 87—499 --..-- .: 125, 335 

McCraw v. Gilmer, 83—162 : :...:.. .....i^j 

McCnllochv. Doak, 68—267 ...., ...132 

McCuUoch, Swaim v., 75--495 - ^5; 3i6, 320 

McCarr^v. McCurry, 82—296 : :.2i5, 334 

McDaniel, Andrews v., 68 — 385 ...: 40, 374 

McDaniel v. King, 89—29 326, 34I, 402 

McDaniel V. Pollock. 87 — 503 327, 337, 340 

McDaniel V. Watkins, 76—399 ,_.. : :.:i28, 204 

McDonald, Baker v., 2 Jones, 244 .,.:.: 15 

McDonald V. Dickson, 85—248 12, 13, 22, 23, 30, 249, 256, 360 

McDonald V. Dickson, 87 — ^404 35, 203 

McDonald v. McLean, 60—120 : -w.l 272 

McDonald V, Morris, 89 — 99 :.. . 4^8, 409 

McDowell V. Asbury, 66^444 .149; 256, 386, 383, 390 

McDowell V. Butler, 3 Jones Eq., 311 56 

McDowell, Harshaw v., 89-181 j..:..- :.346, 35^ 

McDowell. Hilton v., 87—364 :.:..:. -.335. 340 

McDowell. Lewis v.. 88—261 : .: : : 8t 

McDowell, Maxwell v., 5 Jones, 391 --3^5. 

McDowell, Sloan v., 71—356 : :.c(7, 103; 239 

McDowell, Sloan v.. 75—29 - 87 

McDowell, State v.. 84—798 :... ---33.4 

McDougald v. Graham, 75 — 310 .1 :..:.- 95 

McEachin, McArthur v., 64—72 : : :6i, 62, I72, 175 

McElwee v. Blackwell, 82 — 415 2ib 

McElwee. Sharpe v., 8 Jones, 115 ..: ...: -325 

McFarlandv. McKay, 74—258 :.86, 9i 

McGee. Gooch v., 83—59 :.-...:--,-. ..256 

McGee v. Hussey, 5 Ire.. 255 265, 266 

McGibbonyv. Mills, 13 Ire., 163 . .:.:: : 1365 

MbCill. McKeithan v.. 83—517 : : 24 

Mcllhenny. Kidder v., 81—123 :-..-.:21t, 257, 334 

Mfcllwaihe, Faison v., 72—312 :i64, 172, 173, 175, 380, 383 

Mcintosh, State v., 64—607 ...: :.;...8, 9, 371 

iVicIntyie, Meroney v., 82 — 103 : ::...:. .221 

HicKay, Gillis v., 4 Dev., 172 .: 265 

Mclver. Battle v., 68—467 : 394 

MtKay. McFarlandv., 74—258 : .:.: 86, 92 

MtKee v. Lineberger, 69—217 :.... 121 

SlcKee V. Lincbergtr. 87—181 372, 374 

McKee, Nicholsv., 68—429 393, 397 



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I 



XLVI CASES CITED. 



PAGE. 

McKee, Rhyne v., 75 — 259 245, 248, 259, 462 

McKeithan v. McGill. 83—517 ^ 24 

McKeilhan v. McNeill, 74—663 108, 255 

McKeithan v. Ray. 71—165 358 

McKeithan v. Terry, 64 — 25 299 

McKeilhan V. Walker. 66—95 248. 265. 282, 283, 285 

McKenzie, Klutts v.. 65 — 102 209. 211, 230, 233. 235 

McKesson v. Hennessee. 66 — 473 173 

McKesson V. Mendenhall, 64—286 53, 64, loi, 120 

McKesson V. Mendenhall, 64—502.-... 46, 84. 139 

McKesson. Walton v., 64 — 77 ! 86 

McKesson, Walton v., 64 — 154 - 6 

McKeithan, McLeran v., 7 Ire. Eq., 70 265 

McKinnon, Jones v., 87 — 294 43. 124 

McKinnon v. McKinnon, 81—201 39 

McKinsey. State v.. 80—458 224 

McLaughlin, Gilchrist, 7 Ire., 310 15 

McLaughlin. Sever v., 79 — 153 224 

McLaughlin, Sever v., 82 — 332 339, 418 

McLean v. Douglas. 6 Ire., 233 162. 195 

McLean v. Leach. 68—95 -M03 

McLean, Long v., 88 — 3 144. 147 

McLean, McDonald v.. 60—120 272 

McLean v^ McLean, 84 — 366 128. 130 

McLeary v. Norment, 84 — 235 375 

McLellan, Crawford v., 87—169 12, 13, 23 

McLenan v. Chisholra, 64 — 323 344 

McLendon v. Com'rs, 71 — 38 402 

McLeod V. Bullard. 84—515 365 

McLeod V. Bu^fard, 86 — 210 226 

McLeod, Murchinson v., 2 Jon., 239 365 

McLeod, State v., 5 Jon., 318 274 

McLeran v. Jones, 3 Jon. Eq., 195 -. 325 

McLeran v. McKethan, 7 Ire. Eq., 70 265 

McMahon, Sloan v., 85 — 296 210, 231, 233 

McMahon, State v., 85—296 335 

McMillan V. Edwards, 75 — 81 89, 118 

McMillan, Fuller v.. Bus., 206 -365 

McMillan, Holiday v., 83 — 270 lOl, 272 

McMillan, Lyon v., 72 — 392 - 383 

McMillan V. Parsons, 7 Jon., 163.. * 67 

McMillan v. Smith, 2 Car. L. R., 75 327 

McMillan, Smith v., 84 — 593 287 

McMillan, Sutton v., 72 — 102 118. 120, 205, 206, 249, 383 

McMinn v. Freeman, 68 — 341 40 

McMinn v. Hamilton, 77 — 300 57, 34^ 

McNairy , Gilmer v. , 69—335 374 

McNatt, Lewis v., 63 — 64 6, 49, 87, 94. 95 

McNeely V. Haynes. 76 — 122 I44» '45. 146 

McNeill, Burroughs v., 2 D. &. B. Eq., 297 96 

McNeill V. Chadboume, 79 — 149, 340,342 

McNeill, Currie v.. 83—176 27, 236 

McNeil, CoflSeld v., 74—535 93 

McNeill V. Massey, 3 Hawks, 91 226 

McNeill, McKeithan v., 74 — 663 108, 255 

McNeil V. Riddle, 66 — 290 - 19 

McPetersv. Ray, 85—462 234, 335 

McPherson, Commissioners v., 79 — 524 80. 93 

McPherson. Lunceford v., 3 Jon., 174 32$ 



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CASES CITED. XLVII 



PAGE. 

McPherson, Matthews v., 65 — 139 10, 53 

McRae v. Commissioners, 74 — 415 351 

McRae, Com'rs v., 89—95 407 

McRae, Kerchner v., 80—219 *i8 

McRae, Hornthal v., 67 — 21 36 

McRae v. Lawrence, 75 — 289 210 

McRae v. Malloy, 87 — 196 * ■ 318 

McRae, Pcmberion v., 75 — 497 273, 299 

McRae, Swain v., 80— iii .---396. 4or 

McRary v. Fries, 4 Jon. Eq., 233 265 

McWilliams v. Cosby, 4 Ire., 173 378 

Mebane, Humble v., 89 — 410 233, 234. 407, 408 

Mebane v. Laylon, 86 — 571 46, 90, 117, 412, 413 

Mebane V. Mebane, 80—34 42, 129,257,383 

Meekins v. Tatem, 79 — 546 230, 341 

Melvin, Guion v., 69—242 61, 138, 141, 381, 384 

Melvin V. Easley, i Jon., 386 222 

Melvinv. Melvin, 72 — 384 .-..144, 146 

Melvin v. Stephens, 82 — 283 103. 240 

Melvinv. Waddell, 75—361 12, 14, 19, 20 

Mendenhall, McKesson v., 64—286 53, 64, loi, 120 

Mendenhall. McKesson v., 64 — 502 46, 84. 139 

Meneely v. Craven, 86—364 98, 103 

Meredith, Martin v., 71—214 296 

Meroney v. Avery, 64 — 312 376 

Meroney, Lord v., 79 — 14 380 

Merony v. Mclnt3rre, 82 — 103 221 

Meroney«v. Wright, 84 — 336 350, 354 

Merrimon, Fickey v., 79 — 585 210, 211, 224, 241, 362 

Merriti v. Scott, 81—385 276 

Merwin v. Ballard, 65—168 6, 49, 85, 88, 123 

Merwin v. Ballard, 66—398 85 

Mhoon,-Capehart v., Bus. Eq., 30 175 

Mial, Joncsv., 79 — 168 81, 242 

Mial, Jones v.. 82—252 79, 81, 122, 135, 242 

Mial. Jones v., 85—597 317 

Miazza v. Calloway, 74 — 31 66 

Michaux. Perry v., 79—94 175 

Middleton v. Duffy, 73 — 65 61, 67. 74, 76 

Milboume, Martin v.. 66 — 321 211, 233 

Miles, Mason v., 63— 564 164, 380 

Miller v. Bryan, 86—167 ; 237 

Miller V. Hahn. 84 — 226 156, 160 

Miller, Hooper v., 76—402 155. 157 

Miller, Howey v., 67—459 283, 287 

Miller v. Justice, 86—26 203, 383 

Millerv. Lash. 85—51 26 

Miller v. Miller, 89 — 211 210, 211, 274, 295, 302, 307 

Millerv. Parker, 73—58 173 

Miller, Patterson v., 72—516 , 8 

Miller, Roulhac v. , 89 — 1 90 326 

Miller. Sumner v., 64—688 7 

Miller. Williams v., 7 Ire., 186 15 

Milliken v. Fox, 84—107 53, 358 

Mills, Carson v., 69—122 .'. 117 

Mills, Kirby v.,78— 124 36, 212 

Mills. McGibbony v., 13 Ire., 163 365 

Mills, Walton v.. 86—280 166, 170 

MiBsap. Shukr v., 71—297 39, 42, 51 



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XLVIII CASES CITED. 



PAGE. 

l^ims. Crump v.. 64—767 .' 7$, 94. 136 

Mining Co., Beckwith v., 87 — 155 263 

ilining Co., Weaver v., 89 — 198 329 

Minor, Rankin v., 72 — 424 200, 283, 292 

Mitchell, Albright v., 70 — 445 211 

Mitchell V. Brown, 88— 156 116, 218, 22X 

Mitchell, Christmas v., 3Jre. Eq., 535 

Mitchell V. Clarke, Mart., 25.. 37^ 

Mitchell, Moore v.. Phil., 304 319. 4" 

Mitchell V. Com'rs, 74—487 I75 

Mitchell, Eubanks v., 67 — 34 233 

Mitchell V. Henderson, 63 — 643 , $, 203, 317 

Mitchell V. Kilbum. 74—483 33» 

M i tchell V. Sloan, 69—10 1 347 

Mitchell, Smith v., 63 — 620 332 

Mode V. Long, 64 — 433 iS 

Molyneux V. Huey. 81 — 106 128, 130, 374 

Montgomery, WaUington v., 74 — 372 333 

Montgomery V. Wynne, 4 D. & B., 527 .15 

Monroe, Baker v., 4 Dev., 412. 407 

Monroe, McCormick r., 3 Jones, 332 15 

Monroe v. Whitted, 79 — soiB 131 

Moore, Ashe v., 2 Mur., 483 203, 383 

Moore v. Askew, 85 — 199 33a 

Moore v. Austin, 85 — 179 330 

Moore, Carmichael v., 88 — 29 .39 

Moore v. Com'rs, 87 — 209 1 26 

Moore V. Dickson, 74 — 423 , 215 

Moore V. Edmiston, 70—510 10, 79, 115, 117, 120, 122, 13$, 33^ 

M oore, Ex farte^ 64 — 90 46 

Moore v. Gidney, 75 — 34 45, 69, 13Q 

Moore, Gidney v., 86—485 374» 375 

Moore, Grant v., 88 — 77 164 

Moore v. Green, 73 — 394 144. 147 

Moore V. Hill, 85—218 209, 335. 341 

Moore V. Hinnant, 87 — 505 336, 358 

Moore v. Hobbs, 77 — 65 79, 85, 94, 123 

Moore v. Hobbs, 79 — 535 --.79> 85. 9^ 

Moore v. Jones, 76—182 390, 401, 403 

Moore, Lmdsay v., 83 — 444 -- 328 

Moore V. Mitchell, Phil., 304 319, 411 

Moore v. Mullen. 77 — 327 144. I4|S 

Moore V. R. R. Co., 67—209 %\, 6i, 62, 67, 716 

Moore V. R. R. Co., 74—528 255 

Moore, Riddick v., 65 — 382 40» lo* 

Moore, Roeers v., 86 — 35 205, 206, 319 

Moore, Smith v., 79 — 82 -.1 .83 

Moore V. Thompson, 69 — 120 16 

Moore v. Valentine, 77 — 188 163 

Moore, Wharton v., 84 — 479 - 276. 279 

Moore, Wilson v., 72—558 7,64, I2i, ?23, X25. 135 

Moore v. Woodward, 83—531 9?, 156 

Mooring, Staples v., 4 Ire., 2x5 32)| 

Mora V. Scales, 2 Hawks, 364 325 

Mordecai v. Parker, 3 Dev.. 425 265 

Mordecai v. Speight, 3 Dev., 428 267 

Morehead. Cracoff v., 67 — 422 X75 

Morehead, Foy v., 69 — 512 56 

Morehead. Tate v., 65— 68x 187. 395 



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CASES CITED. XLIX 



Morgan, Brooks v., 5 Ire., 481 .325 

Morgan v. Bunting, 56 — 66 367, 374 

Morgan V. Smith. 77—37-. 227, 335 

Morgan, State v., 77 — 510 346 

Morphew v. Tatem. 89 — 183 351 

Morris V. Avery, Phil., 238 I2 

Morris. Brown v., 83 — 251 80, 12X 

Morris, Bryant v., 69 — 444 374.375 

Morris, Cannon v., 81 — 139 12, 218, 367 

Morris y. Gentry, 89 — 248 124, 202, 203, 205, 336, 408, 409, 412 

Morris V. Hayes. 2 Jon., 93 1$ 

Morris, McDonald y., 89 — 99 408, 409 

Morris, Perry v., 65 — 22i -^48, 249, 250 

Morris v. Rippy, 4 Jon., 533 66, 266 

Morris, State v., 3 Hawks. 388 226 

Morris V. Whitehead, 65 — 637 no, 174, 196 

Morris V. Willard, 84 — 293 I70 

Morton, Lane ▼., 78 — 7 127, 356 

Morton, Nash v., 3 Jon., 3 224, 225 

Morton v. Rippy, 84 — 611 133, 250 

Morrison v. Baker, 81 — 76 235. 236, 334 

Morrison Y. Connellcy. 2 Dev., 233 34 

Morrison v. Cornelius, 63 — 346 345 

Morrison, Kidd v., Phil. Eq., 31 332, 336 

Morrison, Orbison v., 3 Mur., 551 ..224 

Morrison, Railroad v., 82 — 141 210, 231,233 

Morrisey v. Hill, 9 Ire., 66 264 

Morrow v. AUman, 65 — 508 365 

Moses, Slate v., 2 Dev., 452 224 

Moss, Davis v., 81—303 358, 390, 392 

Mott, State v., 4 Jon., 499 334 

Mott V. Tate, 66 — 231 402 

Motz V. Stowe, 83—434 256 

Moye. Ormond v., 11 Ire., 564 188 

Moye V. Petway. 76 — 327 412 

Mull V. Martin. 85—406 376 

Mullen. Moore v., 77—327 144, 148 

Mullis, Williams v., 87—159 13, 22, 499, 255, 256 

Munroc, State v., 8 Ire., 258 326 

Murchison v. McLeod, 2 Jon., 239 365 

Murchison v. Plyler, 87 — 79 300, 307 

Murchison v. Williams, 71 — 135 247 

Murphy, Dobson v., i D. & B., 586 15 

Murphy v. Harrison, 65 — 246 8 

Mttrphy» Islerv., 71— -436 45. 255 

Morphy, Islerv., 76—52 53. 79. ^37. 138, 213. 228 

Murphy V. Harper, 84 — 189 - 236 

Morphy V. Ray. 73—588 373.374. 37^ 

Murray v. Ferris, 71 — 492 40. 4i. 374 

Murray v. Shanklin, 4 D. & B., 289 15, 325 

M nrray . State v. , 80—364 343 

Mnrrill V. Humphrey, 76—414 126 

Murrill V. Murrill, 84—182 380 

Myers v. Beeman, 9 Ire., 116 188 

Ityenv. Hamilton, 65—567 no, I94, 196 

Myers. Thomas v., 87—31 335 

KaII, Collins v. 3 Dev. 224 325. 327 

NAshv. Taylor, 2 Hay., 174 236 

Ntsh V. Morton, 3 Jones, 3 * 224, 225 

G 



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CASES CITED. 



PAGE. 



Navassa Guano Co. v. Willard, 73 — 521 25, 73 

Naylor, Frost v., 68 — 325 3^5 

Neal V. Becknall, 85—299.- 210, 231 

Neal V. Cowles, 71 — 266 42S 

Neal V. Fesperman, I Jones, 446 ..210 

Neal V. Mace, 89 — 171 340, 344 

Neal V. Lea, 64 — 678 41. 98, loi, 102 

Neely v. Craige, Phil., 187 12 

Neely v. Haynes, 76 — 122 144, 145, 146 

Neely v. Neely. 79—478 17, 18 

Nelson, Cherry v., 7 Jones, 141 194 

Nelson v. Hughes, 2 Jones Eq., 33 266 

Nelson v. Whitfield, 82 — 46 228 

Nesbitt V. Turrentine. 83 — 535 198, 199. 200 

Nelherton v. Candler, 78 — 88 93, 124 

Nevill, Johnson v., 65—677 261 

Nevill, Johnston v., 68 — 177 336 

Neuse ManTg Co. , King v. , 79 — 360 237 

New Bernt, Smith v., 73 — 303 133 

New Berne, Wade v., 72 — 498 337, 339, 345 

New Berne, Wade v., 73 — 318 133 

Newberry, Haughton v., 69—456... 115, 120. 126, 155, 157, 242 

Newhart v. Peters, 80—167 92 

Newsom, Grant v., 81 — 36 261, 358 

Newsom, Hughes, v., 86 — ^424 : 25, 160 

Newsom, Peebles v., 74 — ^473 87, 89, 92 

Newsom, Person v. , 87 — 142 262 

Newsom, Wyche v., 87 — ^44 61 

Newsom, Trexler v. 88 — 13 , 171 

Nichols V. McKee, 68 — ^429 393, 397 

Nicholson, Burnett v., 79 — 548 173 

Nicholson, Burnett v., 86 — 728 .349, 354 

Nicholson, Cain v., 77 — 411 233, 235, 238 

Nicholson v. Cox, 83 — 48 42, 45, 67, 74, 131 

Nicholson, Parsley v., 65 — 210 6, 10, 78, 115 

Nicholson, Slate v., 85—548 220, 335 

Nimrock v. Scanlin, 87 — 119 46, 72 

Nixon, Bledsoe v., 69 — 81 127, 222, 346, 349, 350 

Nixon, Hagerv., 69 — 108 296, 308 

Nixon V. Harrell, 5 Jones, 76 263 

Nixon, McCormick v., 83 — 113 170, 171 

Norman, State v., 82 — 687. 392, 393 

Norment v. Brown, 79 — 363 236 

Norment, McLeary v., 84 — 235 375 

Noble V. Koonce, 76 — ^405 .^ 315, 322 

Norfleet, Barlow v., 72 — 535 225, 318 

Norfleet v. Staton, 73 — 546 394 

Norris, Sanders v., 82 — 4 328, 343 

N. C. Land Co. v. Beatty, 69 — 329 80, 90, 118, i2o 

N. C. R. R. Co., Green v., 73—524 13, 84, 85 

N. C. R. R. Co., Green v., 77—95 120 

N. C. R. R. Co., Moore v., 67—209 51, 61, 62, 67. 76 

N. C. R. R. Co.. Moore v., 74—528 255 

N. C. R. R. Co. V. Peebles, 63— 238 51 

N. C. R. R. Co., University v., 76 — 103 93, 399 

N. C. R. R., Wagoner v., 5 Jones, 367 68 

N. C. R. R.. W. N. C. R. R. v.. 88—79 166 

Norwood V. King, 86— 80 130 

Norwood V. Thorpt 64—682 247, 431 



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CASES CITED. LI 



PAGF. 

Nutt, Hewlett v., 79 — 263 29, 39, 320 

Null, Hewlett v., 82 — 234 35 

Oaks, Cowles v., 3 Dev., 96 189 

Oales, Carson v., 64 — 1 15 284 

Gates V. Gray. 66—442 lo, 78, 79, 84, 115, 120, 205 

Gates V. Kendall, 67 — 241 1 15, 135, 242 

Gates V. Lilly, 84 — 643 26 

Odencal, Wade v., 3 Dev., 423 132 

Gdom. Rogers v. . 86—432 201 

G'Hagan, Bland v.. 64 — 471 • 335, 341 

G'Hagan, Cobb v., 81 — 293 129 

G'Hara v. Powell, 80— 103 401 

Gldham v. Bank, 84 — 304 198 

Oldham v. Bank, 85 — 241 98 

Oldham v. Kerchner, 79 — 106 344 

Oldham v. Sneed, 80 — 15 132, 343 

O'Kelly, Slate v., 88 — 609 325, 339 

Oliver v. Wiley, 75 — 320 86, 89 

O'Neal, State v., 7 Ire., 251 226 

O'Neal, State v., 7 Ire., 251 221 

Orbison v. Morrison, 3 Murph., 551 224 

Orchard, Ten Broeck, 74 — 409 49, 198 

Orchard, Ten Broeck v., 79 — 518 103, 115, 122 

Ore Company, Gold Company v., 73 — 468 170, 333 

Ore Company, Gold Company v., 79 — 48 173, 234, 236 

Ore Company, Jenkins v., 65 — 563 120, 218 

Ormond v. Moye, ii Ire., 564 188 

Orrell, Long v., 13 Ire., 123 34 

Osborne v. Anderson, 89 — 261 408 

Osborne v. Henry, 66 — 354 413 

Osborne v. Johnston, 65 — 22 14 

Osborne, Ledbetter v., 06 — 379 134, 329, 330 

Osborne, State v., 67—259 374 

Osgood, Mason v., 71 — 212 347 

Osgood, Mason v., 72 — 120 343, 346 

Outlaw, Herring v., 70 — 334 8 

Outlaw V. Hurdle, i Jones 150 218 

Outlaw, Todd v., 79 — 235 76 

Overby v. Fayetteville, 81 — 56 2^^!, 236 

Overby, Ruffin v., 88 — 369 19 

Overby, Watkins v., 83 — 165 296 

Overcash v. Kitchie, 89 — 384 411, 412 

Overton, Hill v., 81 — 393 16 

Owens, Pierce v., 2 Hay., 234 15 

Owen, Daniel v., 72 — 340 134 

Owen, Sutton v., 65 — 123 6, 40 

Owens, State v., 87—565 335 

Page V. Goodman, 8 Ire. Eq., 16 266 

Page, Hettrick v., 82—65 .J 166, 228 

Page. King v., 86—725 344 

Paige V. Price, 78—10 114, 145, 346 

Pain V. Pain, 80 — 322 334 

Palmer, Hoover v., 80—313 144 

Palmer v. Clarke, 2 Dev., 354 262, 263 

Palmer v. Bosher, 71 — 291 108, 180, 183, 185, 193 

Palmer v. Bosher, 72—371 193 

Palmer, Deal v., 68—215 66, 83, 128, 383 

Palmer v. Giles, 5 Jones Eq., 41 

Pamlico, Craven v., 73 — 298 401 



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LII CASES CITED. 



PAGE. 

Pannell v, Scoggin. 8 Jon., 408 372 

Park, Severs v., 88—456 26 

Parker V. Banks, 79—480 15, 16, 23 

Parker, Banks v., 80 — 157 169 

Parker v. Bledsoe, 87 — 221 132, 169, 241, 381 

Parker, Blount v., 78—128 28 

Parker, Cannon v., 81—320 23, 134. 248, 3^0 

Parker V. Hou^e, 66—374 205 

Parker, Johnson v., 79 — 475 12, 16 

Parker, Miller v., 73—58 » 173 

Parker, Mordecai v., 3 Dev., 425 265 

Parker v. Parker, 82—165 1 71, 198 

Parker, Railroad v.. 84—118 326 

Parker V. Scott, 64— 118 187 

Parker v. Shannonhouse, Phil., 299 390 

Parker v. Shuford, 76 — 219 36 

Parkerv. Smith, 64 — 291 , 206, 319 

Parker, State v., 66—624 223 

Parker, Weaver v., Phil. , 479 298 

parkins v. Coxe, 2 Hay., 339 404 

Parks V. Sprinkle, 64 — 637 I98, 284, 291, 292, 293 

Parsley v. Nicholson, 65 — 210 6, lo, 78, 115 

Parsons, McMillan v., 7 Jon., 163 67 

Paschal v. Brandon, 79 — 504 47 

Paschall v. Bullock, 80—329 134. 38l 

Pasour v. Rhyne, 82 — 146 22, 248, 249 

Pass, Reid v., 11 Ire., 589 38Q 

Patapsco v. Magee, 86 — 350 156, 245, 3X8 

Pate, Johnston v., 83—110 19, 80, 84, 91, 105, 207 

Pate, Peebles v.. 86—437 264 

Pattershall, Fourshee v., 67 — 453 309, 229, 230 

Patterson, Britt v., 9 Ire., 197 , , 329 

Patterson, DePriest v., 85 — 376 130, 240 

Patterson v. Hubbs, 65 — 1 19 167, 392, 393, 395, 410 

Patterson, McBryde v., 73 — 478 2io 

Patterson, McBrvde v., 78 — 412 , 333 

Patterson v. Miller, 72 — 516 8 

Patterson v. Wadsworth, 89 — 407 236 

Patrick, Blakely v., 67—40 I57 

Patrick v. Carr, 60^—633 ^--274 

Patrick v. Joyner, 63—573 61, 171 

Patrick, State v., 72 — 217 33Q 

Patrick, Weinstein v.. 75 — 344 375. 370 

Patlon, Lusk v. , 70 — 701 r lOO 

Patton v. Smith. 7 Ire., 438 18^ 

Patton, Wilson v., 87—318 .--.250, 300 

Paxton, Eure v., 80—17 33^, 4IO 

Peacock v. Harris, 85 — 146 ,. 49 

Pearce, Lea v., 68—76 •_. JI5. 205 

Pearce, Lovingerv., 70 — 167 -,IIo, 33? 

Pearce V. Mason, 78—37 83, 95» 124. i?^, 128 

Pearce, Perry v., 68— 367 , 133. 385 

Pearsall v. Kenan, 70 — 472 , .-12, 13, 19 

Pearsall v. Mayers, 64 — 549 100 

Pearson V. Boydcn, 86—585 86 

Pearson, Walton v., 82 — 464 , 3?5» 339 

Pearson, Walton v., 85—34 ^--27» 34» 126, 135 

Peebles, Calvert v., 82—334 6j, 381 

Peebles, Capel v. , 80 — 90 ,^ 335 



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CASES CITED. LIU 



PAGE. 

Peebles v. Davie, 82—385 390 

Feeblcs v. Foot, 83 — 102 , 144, 145, 146, 360 

Peebles, Harrell v., 79 — 26 65, J32, 2;o, 241, 358 

Peebles v. Newsom, 74 — 473 87, 89, 92 

Peebles V. N. C. R. K., 63— 238 51 

Peebles v. Pate. 86—437 264 

Peebles v. Stanley, 77 — 243 , 373 

Peebles, State v., 67— .97 336 

Peebles, Thompson v., 85 — 418 263 

Pepram v. Armstrong, 82 — 326 68, 138 

Pegram v. Com'rs, 64 — 557 ^.,.400, 401 

Pegram v. Slollz, 67 — 144 12, 123 

Pelletier, Koonce v., 82 — 236 329 

Pelletier, Mason v., 80 — 66 427 

Pelleiier v. Saundei-s, 67 — 261 8, 9 

Pemberton, Mauney v., 75 — 219 140, 380 

Pemberton v. McRae, 75 — 497 273, 299 

Pender, Abrams v., Bus., 260 298 

Pender v. Pitman, 84 — 372 170 

Pender v. Griffin, 72 — 270 ,--.70, 131 

Penland, Chambers v., 74 — 340 302 

Penlafnd, Chambers v., 78—53 45, 69, 164, 169, 380. 381 

Penland, Jones v., 2 D. & B., 358 76 

Penland, Wiseman v., 79 — 197 ^ 226, 241 

Penny v. Brink, 75—68 399, 371 

Penny v. Smith, Phil., 35 126 

Penry, Foster v., 76 — 131 125 

Penry, Foster v., 77—160 333 

People V, Heaton, 77 — 18 39J 

People V. Hilliard, 72 — 169 40, 89, 392, 393, 396 

People V. Hunt, 73 — 24 89 

People V. Wilson, 72 — 155 39^ 

Peoples V. Maxwell, 64—313 r.-373. 374 

Pepper v. Broughton, 80—251 372 

Perkins v. Bullinger, i Hay., 422 26^ 

Perkins, Gause v., 3 Jones Eq., 177 19a 

Perkins v. Howell, 5 Ire. Eq., 24 175 

Perkins, Kincaid v., 63 — 282 32 

Perkins v. Perkins, 88 — 41 , 370 

Perkins, Quincey v., 76—295 134. 221 

Perkins, State v., 82—682 203 

Perry V. Adams, 83—266 126,334 

Pf rry v. Bank, 70 — 309 285 

Perry, Davis v., 89 — 420 , 408 

Perry, Heptinstall v. , 76—190 , 310 

Perry v. Jackson, 84 — 230 ^ ^ 374 

Perry V. Jackson, 88—103 277» 335. 337 

Perry. Lowery v., 85—131 9a 

Perry V. Michaux, 79—94 r X75 

Perry v. Morris. 65 — 221 248, 249, 250 

Perry V. Pearce, 68—367 133. 385 

Perry V. Perry, Term R., 184 320 

Perry, Rowland v.. 67—588 4a 

P^nryT. Tupper. 70—538 354 

Perry V. Tupper, 71—385 - 354 

Perry V. Tupper, 77— '413 - 231, 23$ 

Pwy V. Whitaker, 71—447 39 

Perry V. Whitaker, 7a— 57* 330 

P«rry V. Whitaker, 77—102 333 



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LIV CASES CITED. 



Person v. Newsom, 87 — 142 _ . 262 

Person, Hughes v., 63 — 548 144. 180 

Pescud V. Hawkins, 71 — 299 84, 95, 96 

Peters, Newhart v., 80—167 92 

Peters, Utley v., 72—525 71 

Peterson v. Vann, 83 — 118 241, 320, 381 

Petty V. Jones, i Ire., 408 ; .327 

Petway, Battle v., 5 Ire., 576 265, 266 

Pelway, Moye v., 76—327 412 

Phelps, Brandon v., 77 — 44 210 

Phifer v. Barnharl, 88 — 333 164 

Phifer V. Railroad. 72 — 433 351 

Phifer, Young v., 72 — 529 ^.28 

Phillips V. Cannon, 3 Jones, 390 13 

Phillips V. Higdon, Bus., 386 132 

Phillips V. Holland, 78 — 31 66, 138, 159 

Phillips V. Holmes, 71—250 54. 56 

Phillips V. Lentz, 83 — 240 58 

Phillips, Railroad v., 78 — 49 317 

Phillips, Tate v., 77—126 .84 

Phillips V. Trezevant, 70—176 . . .256, 285, 287 

Phillips. Ward v., 89 — 203. 207, 412 

Pickrell, Robertson v., 77 — 302 13, 30 

Piedmont Insurance Company, Barnes v.. 74 — 22 93 

Pierce v. Alspaugh. 83—258 226 

Pierce v. Owens, 2 Hay., 234 ; 15 

Piercy, Colbert v., 3 Ire., 77 378 

Piercy, Commissioners v., 72 — 181 105, 115, 207 

Pinkers, Bank v., 83 — 377 334 

Pipkin, Vann v.. 77 — 408 394 

Pipkin, Smith v., 79 — 569 137,138 

Pippin, Bellamy v., 74 — 46 336 

Pitman, Pender v., 84 — 372 170 

Plott V. W. N. C. R. R. Co., 65—74 12 

Plyler, Murchison v., 87 — 79 300, 307 

Poe V. Hardie, 65 — 447 299, 300, ^01 

Pollock, McDaniel v., 87 — 503 ; 327, 337, 340 

Ponton V. McAdoo, 71 — loi 175 

Pool, Baily v., 13 Ire., 404 226 

Pool V. Bledsoe, 85—1 36 

Poor, State v., i D. &. B., 241 267 

Pope, Goff v., 82 — 696 340 

Pope V. Mathis, 83 — 169 17 

Pope. Vick v., 81 — 22 % 42, 81, 131, 132, 205, 242 

Pope V. Whitehead, 68 — 191 276 

Popelston V. Skinner. 4 D. & B., 156 263 

Porter v. Durham, 79 — 596 I . . .315 

Porter v. Jones, 68 — 320 66 

Porter, Houston v., 10 Ire., 174 186 

Portis, King v., 77 — 25 '. 247 

Poston V. Rose, 87 — 279 13, 102 

Poteat V. Bryson, 7 Ire., 337 271 

Potter, Brown v. , Bus. , 461 15 

Potter, Jones v., 89 — 220 352 

Potter V. Mardre, 74 — 36 155, 157, 158 

Potter, State v., Phil., 388 413 

Potts, Havens v. , 86—31 40. 41. 409 

Powe, Tate v., 64 — 644 7, 8, 61, 108, 137, 139, 386 

Powell V. Allen , 75 — 450 93 



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CASES CITED. LV 



PAGE. 

Powell, Edgerlon v., 72—64.. 90, 118 

Powell V. Fellon, ii Ire., 469 15 

Powell V. Hill. 64 — 169 242 

Powell, O'Hara v., 80 — 103 _ . ..401 

Powell V. Weith, 66 — ^423 w 132 

Powell V. Weilh, 68—342 A 132 

Powell V. W. & W. R. R. Co., 68—395 223, 224, 227 

Powers, Graybeal v.. 83 — 561 96 

Powers, Slate v., 3 Hawks, 376 343 

Prairie, Wynne v., 86 — 73 129, 205, 206 

Price V. Cox, 83 — 261 67, 70, 71, 178, 179, 205 

Price V. Eccles, 73 — 162 120.231,233 

Price V. Gaskins, Phil. Eq., 224 24 

Price, Paij»e v. , 78 - 10 1 14, 145, 146 

Pritchett, Andrews v., 66—387 64, 84, 139, 209, 212 

Pritchett, Andrews v., 72—135 304, 309 

Pritchett v. Saunderson, 84 — 299 168 

Privett V. Calloway, 75 — 233 13 

Poyner, Ballentine v., 2 Hay., 268 404 

Pruden, Righton v., 73 — 61! 84, 87, 126, 198, 284, 289, 292 

Pugh V. Grant, 86 — 39. 40, 41, 367 

PuUenv. Heron Mining Co., 71 — 567 48 

Purdee, Stale v., 67—326 335 

Pumell V. Pumell, 89 — 42 213, 218 

Purnell v. Vaughan, 77 — 268 170 

Purnell v. Vaughan, 80 — 46 64, 99, 139 

Purvis V. Jackson, 69 — 474 254 

Puryear, Blair v., 87 — loi 185, 195 

Putney, Jones v., 3 Mur., 562 15 

Quincey v. Perkins, 76 — 295 134, 221 

Quinn, Adams v., 74 — 359 90, 92, 1 18 

Quinn, Rouse v., 75—354 328, 339 

Radcliflf, Brooks v., 11 Ire., 321 : 267, 268 

Ragland v. Currin. 64 — 355 5 

Rahily v. Stringfellow, 72 — 328 194 

Railroad Co. v. Battle, 66 — 540 170 

Railroad v. Boing, 88—62 131, 330 

Railroad, Branch v., 77 — 347 384 

Railroad, Branch v., 88 — 573 340 

Railroad, Brown v., 83 — 128 , 165 

Railroad, Burton v., 82 — 504 221, 342 

Railroad, Burton v., 84 — 192 221, 353 

Railroad, Carter v., 68 — 346-. 57, 59 

Railroad v. Com'rs, 82 — 259 167 

Railroad, Doughty v., 78 — 22 118, 119, 124 

Railroad Co., Glenn v., 63 — 510 225 

Railroad v. Green, 73 — 524 85 

Railroad, Hannah v.. 87 — 351 51 

Railroad v. Jenkins, 65—173 401, 403 

Railroad v. Jenkins, 68 — 502 401 

Railroad, Katzenstein v. , 78 — 286 68 

Railroad, Keeter v., 86—346 384 

Railroad, Leach v., 65—486 54, 81, 205, 242 

Railroad, Lindley v., 88 — 547-.- 353 

Railroad v. Morrison, 82 — 141 210, 231, 233 

Railroad, Phif er v. , 72—433 351 

Railroad v. Phillips, 78 — 49 317 

Railroad, Powell v., 68 — 395 223, 224, 225, 227 

Railroad v. Railroad, 83 — ^499 332 



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LVI CASES CITED. 



PAGE. 

Railroad Co., Sampson v., 70—404 340, 341, 342 

Railroad, Smith v., 72 — 62 323, 355 

Railroad, Stanly v., 89 — 331 409 

Railroad, Slate v., 74—287 321. 332, 336, 354 

Railroad, Telegraph Co., 83 — 420 334 

Railroad,*Threadgill v. , 73 — 178 394 

Railroad v* Wilson, 81 — 223 48 

Raisin v. Thomas, 88 — 148 99 

Raleigh, Commissioners v., 88 — 120 210, 233 

Raleigh, Doyle v., 89 — 133 402 

Raleigh, Ellison v. , 89 — 125 392, 402 

Raleigh, Gaslight Co. v., 75 — 274 403 

Raleigh, Tucker v., 75—267 403 

Ramsey, Runnion v., 80—60 6 

Ramsoury. Harshaw, 8 Ire., 480 356 

Ramsour v. Ramsour, 63 — 231 52 

Rand v. Bank, 77 — 152 203 

Rand v. Rand, 78 — 12 284, 285, 290 

Randall, State v., 87 — 571 326 

Rankin V. Allison, 64—673 39, 43, 55, 57, 112, 200 

Rankiil v. Commissioners, 70—550 168, 169, 350 

Rankin v. Minor, 72—424 200, 283, 292 

Ransom V. McClees, 64 — 17 84,94,95,103,123 

Rapier, Evans v., 74 — 639 50 

Rathjohn, Wessell v. , 89 — 377 411 

Rayner v. Capehart. 2 Hawks, 375 13 

Ray, Hardin v., 89 — 364 24I, 358 

Ray V, Horton, 77 — 334 I57 

Ray, Howell v., 83 — 558 340, 420 

Ray, Johnson v., 72 — 273 225 

Ray, McKethan v., 71 — 165 358 

Ray, McPetersr., 85 — 462 234, 335 

Ray, Murphy v., 73—588 373. 374. 376 

Rea, Howie Y., 70 — 559 92, lot 

Reader. Hamlin, Phil., 128 325 

Reams, Geer v., 88—197 129, 131 

Reardon v. Guy, 2 Hay., 245 326 

Redman v. Redman, 70 — 257 374, 376 

Reed V. Exum, 84 — 430 26, 98, tod. 277, 278 

Reed v. Schenck, 2 Dev., 415 224 

Reed, Tally v. , 74--463 265 

Reel V. Reel, 2 Hawks, 63 424 

Reese, Grant v., 82 — 72 228, 231, 340, 418 

Reese v. Jones, 84 — 597 64, 334 

Reeves, Adams v., 74—106 337» 339, 342, 343 

Reeves, Adams v., 76—412 127, 133 

Reeves v. Reeves, 82^348 381 

Reeves, Smith v., 85—594 34$, 35t 

Reid, Alsbrook, v., 89— 140 

Reid V. Pass 11 Ire., 589 ...380 

Reid, Sledge v., 73—440 5t 

Reid, Smith v., 6 Jones, 494 ,. 15 

Reid, Spoon v. , 78 — 244 3 to 

Rcld, State v., i D. & B., 377 59, 326, 328 

Reid, Tally v., 72—336 93, 264 

Reieer v. Davis, 67 — 1 85 224 

Relfly, Belmont v., 71 — 260 10, 399, 40O 

Reilly» Lute v., 65—20 302, 307 

Rencher v. Wynne, 86 — 268 226 



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CASES CITED. LVII 



PAGE, 

Respass, Blake v., 77—173 137, 284 

Respass, Wilson v.. 86 — 112 156, 170 

Reynolds, Frost v., 4 Ire. Eq., 494 265 

Reynolds, McCanless v., 74 — 301 376 

Reynolds, v. Smathers, 87 — 24 -.100, loa, 112, 124, 125 

Reynolds State v., 87 — 544 226 

Rhea v. Deaver, 85 — 337 2II 

Rhyne. Gamble v.. 80—183 184, 185, 192 

Rhyne, Grier v., 67 — 330 183, 184, 260 

Rhyne, Love v., 86 — 576 98 

Rhyne V. McKee, 73—259 245, 248. 251, 426 

Rhyne, Pasour v., 82 — 149 22, 248, 249 

Rhyne, Taylor v., 65—530 302 

Rhyne, Titman v., 89 — 64 248, 263, 264 

Rice V. Keith, 63—319 370 

Rich, Dyerv., 2 Car. L. R., 610 325 

Rich, Gowing v., i Ire., 553 266 

Rich, Henry v., 64 — 379 211, 2i8 

Richards v. Baurman, 65 — 162 173, 199 

Richardson Barrett v., 76 — 429 295,299 

Richardson, Bingham v., Phil., 315 390 

Richardson, Chester v. , 82 — 343 .- 333, 334 

Richardson v. Debnam, 75 — 390 337 

Richardson, Earp v., 75—84 235, 238 

Richardson, Earp v., 78 — 277 22 

Richardson, Earp v., 81 — 5 22, 427 

Richardson, Hale v., 89 — 62 180 

Richardson, Lane v., 79 — 159 12, 35, 36, 73 

Richardson, Martin v., 68 — 255 41, 98 

Richardson v. Wicker, 80—172 -. 309 

Ricks V. Blount, 4 Dev., 128 263 

Ricks, Harris v., 63—653 247 

Riddick v. Moore, 65 — 382 40, 102 

Riddick, Tredwell v., i Ire., 56 15 

Riddick, Whedbee v., 79 — 521 41, 100 

Riddle, McNeill v., 66 — 290 10 

Riddle, Symev., 88—463 26 

Riggs V. Roberts, 85—151 35, 36 

Richton V. Praden, 73 — 61 84, 87, 126, 198, 284. 289, 292 

Riley, Commissioners v., 75 — 144 178, 185. 192, 305 

Rinehart, Dunkart v., 87 — 224 170, 171 

Ring V. King, 4 D. & B., 164 15, 221, 341 

Rintels, Sharpe v., Phil., 34 220 

Rippy, Morris v , 4 Jones, 533 66, 266 

Rippy, Morton v., 84 — 611 * 133, 250 

Rivers, Council v., 65 — 54 380 

Rives, State v., 5 Ire., 297 267 

Rives v. Williams, 63 — 128 86 

Roanoke Navigation Company, Attorney General v., 84 — 705 167 

Roanoke Navigation Company, Spillman v. , 74 — 675 26 

Robbins, Bcnlx)W v., 71 — 338 12, 19 

Robbins, Benbow v., 72 — ^422 228 

Robbins, Boyle v., 71 — 130 40 

Roberts v. Lisenbee, 86 — 136 51 

Roberts, Flemming v., 77—415 231, 238 

Roberts, Flemming v. , 84 — 532 410 

Roberts. Riggs v.. 85—151 35, 36 

Roberts, Weaver v., 84—493 70 

Robertson, Chamberlain v., 7 Jones, 12 90 

H 



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LVIII CASES CITED. 



PAGE. 



Roberson v. Dunn, 87 — 191 26, 33 

Robertson v. Pickrell, 77 — 302 13, 30 

Robertson, State v., 86 — 628 223 

Robeson v. Lewis, 64 — 734 345, 351 

Robeson v. Lewis, 73 — 107 220 

Robinson, Alexander v., 85 — 275 , 209. 335 

Robinson v. Howard, 84 — 151 399, 401 

Robinson, Scarborough v., 81 — 409 401 

Robinson v. Willoughby, 67 — 84 125 

Robinson, Wooley v., 7 Jones, 30 320 

Rockwell, Williams v., 64 — 325 380 

Rodman, Austin v., i Hawks, 71 132 

Rogers, Davis v., 84 — 412 243 

Rogers, Deloatch v. , 86 — 357 392 

Rogers v. Gooch, 87—442 40 

Rogers, Haywood v. , 73 — 320 .92 

Rogers v. Holt, Phil. Eq., 108. . 380 

Rogers v. Moore, 86—35 205, 206, 319 

Rogers v. Odora, 86—432 201 

Rogers, Sluder v., 64 — 289 129, 131, 296, 299 

Rogers, Smith v., 65 — 181 12 

Rollins, Duvall v., 68 — 220 305 

Rollins, Duvall v., 71 — 21S 302, 305, 344 

Rollins V. Henry, 76 — 269 52 

Rollins V. Henry, 77 — 467 82, 198, 208, 554 

Rollins V. Henry, 78—352 76, 132, 141, 240, 241, 243, 257 

Rollins V. Henry, 84—569. 83. 208 

Rollins V. Henry, 86 — 714 265 

Rollins V. Rollins, 76 — 264 47, 52, 331, 332 

Rollins, Young v., 85 — 485 164, 172, 176, 198, 199, 200, 283, 39S 

Rorke, Battle v., i Dev., 228 321 

Rose, Clayton v , 87 — 106 17, 20 

Rose, Avery v., 4 Dev., 549 267, 268 

Rose, Poslon v., 87 — 279 13, 102 

Roseman, Lippard v., 70 — 34 231 

Roseman, Lippard v., 72 — 427 126, 213, 231, 333 

Ross v. Durham, 4 D. & B., 54 15 

Ross v, Henderson, 77 — 170 28, 30 

Roulhac V. Brown, 87 — i 146, 148, 153, 332, 381 

Roulhac V. Miller, 89 — 190 326 

Rountree, Lewis v., 81—20 427 

Rouse V. Quinn, 75—354 328, 339 

Rouse, State v., 88 — 682 35? 

Rowark v. Gaston, 67 — 291 ... 66 

Rowark v. Homesly, 68 — 91 .* 147. 153 

Rowland v. Gardner, 69 — 53 1 48, 87 

Rowland, Johnson v. , 80—1 102, 127, 356 

Rowland v. Perry, 67 — 588 42 

Rowland v. Thompson^ 64 — 714 in, 341 

Rowland v. Thompson, 65 — no 8, 232 

Rowland v. Windley, 82—131 105, 203, 207 

Ruffin v. Overby, 88—369 19 

Rule V. Council, 3 Jon., 33 327 

Rumfelt, Hutchison v., 82—425 344. 417. 4i8 

Rumfelt, Hutchison v., 83 — 441 130, 339 

Runnion v. Ramsay, 80 — 60 6 

Russ, Lyon v., 84 — 588 22, 249 

Rush, State v., 12 Ire., 382 225 

Rush V. Steamboat Co., 67—47 331. 333. 344 



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CASES CITED. LIX 



PAGE. 

Rush V. Steamboat Co., 84—703. .- 255 

Russell V. Adderton, 64—417 99 

Russell V. Hinion, i Mur., 468 188 

Russell V. Saunders, 3 Jon., 432 65 

Sampson v. Railroad Company. 70 — 404 340, 341, 342 

Sanders v. Norris, 82 — 4 328 

Sanderson ▼. Daily, 83—67 255, 381. 382 

Sanderson. Gordon v., 83 — i 337,345,413,420 

Sanderson. Spruill v. , 79—466 27, 28 

Saichwell, Com'rs v., 88 — i 337 

Salcliwell, Trustees v., 71— iii 116 

Satterfield, Evans v., i Mur., 413 15 

Saulsbury v. Cohen, 68 — 289 346, 410 

Saunders v. liatling, 8i — 298 40, 390, 392, 394 

Saunders, Jarman v., 64 — 367 134, 164, 169, 380, 381 

Saunders v. Norris, 82 — 243 343 

Saunders, Pelletier v. , 67 — 261 8, 9 

Saunders, Russell v., 3 Jon., 432 65 

Saunders. Wade v., 70 — 277 46, 47, 267, 268 

Saunderson, Pritchard v., 84 — 299 168 

Savage, Hawkins v., 75 — 133 12, 27. 

Savage, Von Glahn v. , 73 — 333 88 

Scales, Mora v. . 2 Hawks, 364 325 

Scanlin. Adrian v., 77 — 317 150 

Scanlin, Nimrock v., 87 — 119 46, 72 

Scarborough v. Robinson, 81 — 409 401 

Schehan v. Malone, 71 — 440 96, 105, 207, 236, 341 

Schenck, Hewlett v., 82— 234.. 25 

Schenck, Reed v., 2 Dev., 415 224 

School Committee v. Keslcr, 66—323 209, 21 1, 212, 217, 333 

School Committee, Taylor v. , 5 Jones, 98 . .401 

Schonwald, Sutton v., 80^20 , 233, 334 

Scoggin. Pannell v., 8 Jones, 408 372 

Scott V. Battle, 85—184 98, 103, 276, 278 

Scott V. Elkins, 83 — 424 17 

Scott, Ellis v., 75 — io8. 12 

Scott V. Green, 89 — 278 220. 237 

Scott. Greensboro v., 84 — 184 229. 230 

Scott, Merriit v., 81 — 385 276 

Scott, Parker v., 64 — 118 187 

Scott. State v., 64 — 586 225 

Scott, State v., 80—365 331, 333, 335 

Scott V. Walion, 67 — 109 296, 303 

Scott V. Timberlake, 83 — 382 99 

Scroggs V. Alexander, 88 — 64 328 

Seaborn, State v., 4 Dev., 305 58 

Searl, Wilson v., 84 — no 342, 418 

Secrest, State v., 80—450 342 

Sedbenry v. Carver, 77 — 319 149. 150 

Sedberry v. Commissioners, 66 — 486 317, 403 

Sedberry, Johnson v., 65 — i. 431 

Setzer v. Lewis, 69 — 133 39. 200 

Sever v. McLaughlin, 79 — 153 224 

Sever v. McLaughlin. 82—332 339, 418 

Seymour v. Cohen, 67 — 345 383 

Shamwell, Thompson v., 89- 283 381 

Shanklin. Murray v., 4 D. & B., 289 15, 325 

Shannon v. Jones, 12 Ire., 206 267 

Shannonhouse, Parker v., Phil , 209 390 



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tx CASES CITED. 



PAGE. 

Shwpe V. King, 3 Ire. Eq., 402 r---i75 

Sharpe V. McElwee, 8 Jones, 115 325 

Sharpe V. Hintels, Phil., 34 220 

Sharpe, Smith v.. Bus.. 91 4^6 

Sharpe, Williams v., 70—582 126, 134 

Sharpev. Williams, 76—87 247 

Shaver, Davis v., Phil 220 

Shaw, Adrian v., 82—474 3<» 

Shaw, Adrian v., 84—832 300, 341, 345 

Shaw v. Burney, 86—331 36 

Shaw, Jones v., 84—218 340 

Shehan v. Malone, 72-^9 222 

Shelton v. Davis, 69—324 80, 122 

Sheltonv. Shelton, 89—185 329.343 

Sheperd, State v., 8 Ire., 195 58 

Sheppard V. Bland, 87—163 241, 247, 263, 353 

Sheppard, State v., 87—574 340 

Sheppard, Ward v., 2 Hay., 283 404 

Sherrill, State v., 82—693 2i8 

Shields, Allen v., 72—504 45, 69, 308 

Shieldsv. Allen, 77—375 296 

Shields, Alsbrook v. , 67—333 157 

Shields v, Lawrence, 72 — ^43 51. 405 

Shields v. Lawrence, 82 — 516 221 

Shields v. Smith, 79 — 517 372, 374 

Shields, Southall v., 81—28 .48 

Shields, Watson r., 67— 235 134 

Shieldsv. Whitaker, 82—516 220, 341 

Shiner. Wilcox, i D. & B. Eq., 631 404 

Shinn v. Smith, 64 — 93 203 

Shina v. Smith, 79 — 310 •. 352, 383 

Bhober, Hoppock v., 69 — 153 247, 248 

Shuford, Parker v., 76—219 36 

Shuler v. Bryson, 65 — 201 187 

Shuler V. Millsap, 71 — 297 39, 42, 51 

Shute, Bogey v., i Jon. Eq., 180 405 

Sieman v. Hause, 86—310 336 

Siler, Yeargin v., 83 — 348 63 

Simmons, Adkinson v., 11 Ire., 416 378 

Simmons V. Dowd, 77 — 155 131,328,332 

Simmons, Darden v., 84 — 555 96 

Simmons, State v., 68—378 8 

Simmons, Woodhouse v., 73—30 .11, 35, 373 

Simpson v. Harry, i D. & B., 202 195 

Simpson, Hasty v., 77^^ 283, 289, 290 

Simpson, Hasty v., 84 — 590 253 

Simpson v. Simpson, 63 — 534 274 

Simpson v. Simpson, 64 — 427 135 

Simpson, Thomas v., 80—4 102, 127, 356 

Simpson v. Wallace, 83 — 477 296, 308 

Simonton v, Chipley, 64 — 152 333 

Simonton v. Clark, 65 — 525 36 

Simonton, Dobson v., 78 — ^63 167, 170, 200, 398 

Simonton, Dobson v., 86 — ^492 .241 

Simonton v. Lanier, 71 — ^498 128 

Simonton v. Simonton, 80—7 343 

Simonton, State v., 78 — 57 49, 53 

Simonton, Wellborn v., 88 — 264 100, 237 

Sims V. Goettle, 82—268 ^.53, 162, 195 



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CASES CITED. LXI 



PAGE. 



Sinclair, Barry v., Phil.. 7 , 186 

Sinclair, Hinsdale v., 83 — 338 282, 285 

Singeltary v. Whitaker, Phil, Eq., 77 380 

Skcen, Coxc v., 3 Ire., 443 379 

Skillington v. Allison. 2 Hawks, 347 , , 34 

Skinner v. Badham. 80—14 354 

Skinnerv. Bland, 87—168 133. 382 

Skinner v. Bryce, 75 — 287 129 

Skinner, I licks v., 72 — i .,.-.427 

Skinner ▼. Maxwell, 66 — 45 199 

Skinner v. Maxwell, 67 — 257 325, 328, 33a 

Skinner v. Maxwell, 68 — ^400 198 

Skinner, Popelston v., 4 D. & B., 156, 263 

Skinner v. Warren, 81 — 373 267, 268, 274 

Skinner v. Wood, 76 — 109 120 

Spurtin, State v.. 80—362 334 

Sfade, Cherry v., 2 Hawks, 400 328 

Sledge, Arrington v., 2 Dev., 354 , 263 

Sledge V. Blum, 63—374 172. 173. J75» 330, 404 

Sledge V. Reid, 73 — ^440 51 

Sloan, Carleton v., 64 — 702 ,. X49 

Sloan, Martin v., 69 — 128 172,413 

Sloan V. McDowell, 71 — 356 97, 103, 239 

Sloan w, McDowell, 75 — 29 87 

Sloan V. McMahon, 85 — 296 2io, 23 j, 233 

Sloan, Mitchell v. , 69 — 10 347 

Sloan, Vestal v., 83 — 555 236, 316 

Sludcr V. Rogers, 64 — 289 , , 296, 299 

Sluder v. Rollins, 76—271 129, 131 

Sluder. Wells v., 68—156 355 

Smallwood, Jacobs v., 63 — 112 , 86, 299 

Smathers, Reynolds v., 87 — 24 lOO, 102, 112, 124, 125 

Smith, Atkinson v., 89 — 72 20i 

Smith, Barn hart v., 86—473 *.- Io6, 107 

Smith, Brings v., 83 — 306 12. 25, 28, 32, 42, 212 

Smith. Brown v., 8 Jones, 331 272 

Smith, Cecil v., 81 — 285 47, 52 

Smith, Chambers v., i Hay., 366 325 

Smith V. Dewey, 64 — ^463, , 169, 250 

Smith, Faulk v., 84 — 501 ..- 70, j8o, i8i 

Smith, Finley v., 4 Dev., 95 257, 264 

Smith, Finley v., 2 Ire., 225 248 

Smith, Garrett v., 64 — 93 , .-^ 203 

Smith, Gibson v., 65 — 103 , 209 

Smith V. Gibson. 74—684 145, 180 

Smith V. Greenlee, 3 Dev., 387 58, $9 

Smith V. Hahn, 80—240 132, 134 

Smith V. Haynes, 82 — 448 , 367 

Smith. Henry y., 78 — 27, 222 

Smith V. High. 85 — 93 301 

Smith V. Hunt, 68 — ^482 303, 304, 306 

Smith, Hutchinson v. , 68 — 354 , ,.. 104. 203, 239 

Smith, Johnston v., 86 — 498 94 

6mith v. Low, 2 Ire.. 457 66 

Smith V. Lyon. 82—2 324, 339. 4^7 

Smith V. L)mn. 84—837 327 

Smith. McMillan v„ 2 * ar. L. R.. 75 327 

Smith V. McMillan, 84—593 ,--.287 

Smith y. Mitchell, 63 — 620 33f 

Smith V. Moore, 79—82 87 



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LXII CASES CITED. 



PAGF.. 



Smith, Morgan v., 77 — 37 227, 335 

Smith V. Newbern, 73 — 303 I3S 

Smith, Parker v., 64—291 206, 319 

Smith, Pation v., 7 Ire., 438 188 

Smith, Ptiiny v., Phil., 35 126 

Smith V. Pipkin, 79 — 569 137. ^3^ 

Smith V. R. R. , 72—62 323. 35S 

Smith V. Reeves, 85—594 345. 35^ 

Smith V. Reid, 6 Jones, 494 15 

Smith V. Rogers, 65 — 181 12 

Smith V. Sharpe, Bus. ,91 4^ 

Smith, Shields v., 79 — 517 372, 374 

Smith, Shinn v., 64 — 93 : .. ..203 

Smith, Shinn v., 79 — 310 352,383 

Smith V. Smith, 72 — 139 27, 30 

Smith, Slate v., 80^410 216 

Smith, Stevens v., 8 Ire., 38 326 

Smith V. Stewart, 83— 406 277,278 

Smith, Swain v., 65 — 2ii 329 

Smith V. Tritt, i D. & B., 241 267 

Smith, Wahab v., 82 — 229 137 

Smith, Whitehead v., 8 Jones, 351 354 

Smoot, Alexander v., 13 Ire., 461 37^ 

Sneed v. Bullock, 77—282 381, 393 

Sneed v. Crealh, i Hawks, 399 224 

Sneed, Hunt v., 64 — 176 8 

Sneed, Oldham v., 80—15 *32, 343 

Snow, Bledsoe v., 3 Jones. 99 325, 329 

Snow, White v., 71—232 128, 205 

Soapsione Co., Clegg v., 66 — 391 132 

Soaptone Co., Clegg v., 67 — 302 X29, 333 

Sossamer v. Hen.son, 72 — 578 329 

South, Lenoir v., 10 Ire., 237 15 

Southall v. Shields, 81—28 ..• 4B 

Southard. Tate v., 3 Hawks, 119 15 

Southerland v. Jones, 6 Jon., 321 .405 

Southerland v. Harper, 83 — 200 16S 

Southern Express Co. , Froelich v. , 67 — 2 10 

Southern Express Co., Cunningham v., 67 — 125 68 

Southern Underwriters, LaFontaine v. , 83 — 132 235 

Sowers, Loftin v., 66—251 ... 393 

Spach, Belo v., 85—122 23, 36 

Sparks, Wilson v. , 72 — 208 299 

Sparrow v. Davidson, 77 — 35 60, 76, 337, 383 

Spaugh v. Boner, 85—208 334. 337. 355 

Speed, Beavan v., 74 — 544 295 

Speight, Mordecai v., 3 I>cv., 428 267 

Spencer v. Hawkins, 4 Ire. Eq., 288 .264 

Spiers, Burton v., 87—87 300, 302. 303. 307 

Spiers v. Halstead, 71 — 209 70, 180, 181 

Spiers, Hartman v., 87 — 28 316 

Spillman /. Roanoke Nav. Co., 74 — 675 26 

Spivey , Futrell v. , 63 — 526 332 

Spoon v, Reid, 78 — 244 310 

Sprague, Freeman v. , 82 — 366 13. ^5 

Sprague, Howerton v. , 64 — 45 1 176 

SprinWe, Dougherty v. . 88 — 300. 79 

Sprinkle v. Hutchinson, 66 — 450 8, 167 

Sprinkle v. Martin, 66 — 55 265 



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CASES CITED. LXIU 



PAGE. 

Sprinkle, Parks v. . 64—637 198, 284. 291 . 292. 293 

Spru ill V. Sanderson, 79 — 466 27,28 

Spurliiig, Bank v., 7 Jon., 398 195 

Spurtin, State v., 80-^362 339 

Stafiford. Bank v., 2 Jon., 68 274 

Stafford v. Harris, 72 — 198 126, 140 

Slainback, Butler v., 87 — 216 : ..300 

Stallines v. Gully. 3 Jon., 344 ..-131 

Stancill Bunting v.. 79—180 9 

Stanly, Clark v , 66 — 59 393 

Stanly v. Mason, 69 — 412 56, 57 

Stanly. Peebles v. , 77 — 243 373 

Stanly v. Railroad. 89—331 : [409 

Staples V. Mooring. 4 Ire. , 215 1 328 

Starr V. Hall, 87—381 409 

State V. Allen. 3 Jon., 257 224 

State V. Alphin, 81—566 22o, 358 

State V. Angell, 7 Ire. , 27 223 

Stale V. Arrington, 3 xMur., 571 411 

State V. Austin. 79 — 624 221, 226 

State V. Ballard. 79 — 627 220, 342 

State V. Barfield. 8 Ire., 344 59 

State V. Benthal, 82—664 96 

Slate V. Blackburn, 80 — 474 « 327 

State V. Blair, 76— 78 46 

State V. Boon, 82 — 637 218, 225 

State V. Brantley. 63 — 518 225 

State V. Bray, 89— 480 411 

State V. Brittain, 89 — ^481 411.412 

State V. Browning, 78 — 555 224 

State V. Bultock, 63—570 336 

State V. Cain, 2 Jones. 201 . . 225 

State V. Carr. 71 — 106 305, 309 

State V. Cauble. 70—62 127 

State V. Caveness. 78 — 484 218, 220 

State V. Clara. 8 Jones, 25 225 

Stale V. Collins, 3 Dev., 117. . ^ 59, 328 

State V. Commissioners. 70—137 .400 

State V. Cooper, 83 — 671 ". . .216 

State V. Cowan, 7 Ire., 239 ; 413 

State V. Craige, 89 — 475 413 

Stale V, Craton, 6 Ire., 164 "...326 

Slate V. Crockett, 82 — 599 . .342 

State V. Crouse, 86 — 617 332. 337 

State V. Dancy, 78 — 437 * 224 

Stale V. Davis, 4 Dev.. 412 . .223 

State V. Davis, 82 — 610 .305 

Slate V. Dick, 60—440 222 

State V. Dixon 71—204 .346 

Stale V. Dixon, 75 — 275 223 

Slate V. Donaldson, 83 — 683 339 

State V. Duncan, 6 Ire., 98 58 

Stale V. Duncan, 6 Ire., 236 59 

Slate V. Dunlap, 65 — 288 2^4, 226 

Slate V. Grady, 83—643 221, 225, 334 

State V. Guilford. 4 Jones. 83 .340 

$tate v. Haney, 2 D. &. B., 390 , 226 

Slate V. Hardee, 83 — 619 221, 223, 342 

State V. Hargett, 65 — 669 225 



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LXIV CASES CITED. 



PAGE. 

State V. Hawkins, 72—180 324» 339 

State V. Heaton, 77—505 216 

State V. Hinson, 82 — 597 342 

State V. Hinson, 83—640 225 

State V. Horton, 89— 32° 

State, Houston v., 66— 231 393 

State V. Jacobs, Bus., 218 3^7 

State V. Jeflferson, 66—309 32? 

Sjate V. Jenkins, 85—544 "5 

State V. Johnson, i Ire., 354 • 223, 226 

Slate V. Jones, i Ire., i2q 399 

State V. Jones, 67— 285 223 

State V. Jones, 69— 16 4^3 

State V. Jones, 82— 691. 34«>. 420 

State V. Jones, 87—547 226, 227 

State V. Jones, 88—683 °7. 7^ 

State V. Keath. 83—626 225, 341 

State V. Keeter, 80—479 341. 345 

State V. Kennedy. 89— 329 

State V. King, 5 Ire., 203 340 

State V. Langford, Bus., 436 34' 

Stale V. Lanier, 89—517 202. 205, 412 

State V. Laxton, 78—564 223 

State V. Lindsay, 78—499 ! 33". 333. 334 

State V. Lipsey, 3 Dev., 485 226 

State V. Locke, 77—481 223 

State V. Locke, 86—647 ^27 

Slate V. Locust, 63 — 574 ^ 

State V. Long, 76—254 394 

Slate V. Lupton, 63 — 483 ^ 

Slate V. Marley. 8 Ire., 48 326 

State V. Matthews, 78—523 226 

State V. Matthews, 80— 41 7 . . . : 224 

State V. Matthews, 82—672 218 

State V. May, 4 Dev., 328 225 

State V. McDowell, 84— 798 334 

Slate V. Mcintosh, 64—607 -- 8, 9, 37© 

Slate V. McKinsey, 80—458 224 

Slate V. McLeod, 5 Jones, 318 274 

Statev. McMahon, 85—296 335 

State V. Morgan, 77—510 34^ 

Statev. Morris, 3 Hawks, 388 226 

State V. Moses, 2 Dev., 452 224, 226 

State V. Molt, 4 Jones, 499 334 

Stale V. Munroe, 8 Ire.. 258 , 326 

State V. Murray, 80—364 343 

Statev. Nicholson, 85—548 220, 335 

Statev. Norman, 82—687 --392, 393 

Statev. O'Kelly, 88—609 325. 339 

Statev. O'Neal, 7 Ire., 251 221, 226 

State V. Osborne. 67—259 374 

State V. Owens, 87—565 335 

State V. Parker, 66—624 223 

Slate V. Patrick, 72 — 217 339 

Slate V. Peebles, 67—97 236 

Slate V. Perkins, 82—682 203 

Statev. Poor, 4 D. & B., 384 267 

Statev. Potter, Phil.. 388 ' 413 

Statev. Powers, 3 Hawks, 376 343 



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CASES CITED. LXV 



PAGE. 

State V. Purdee, 67 — 326 335 

Slate V. R. R., 74—287 321, 332. 336, 354 

Slate V. Randall, 87— 571 326 

Slate V. Reid, i D. & B.. 377 •. 59. 326, 328 

State V. Reynolds, 87 — 544 226 

Stale V. Rives. 5 Ire., 297 267 

State V. Robertson, 86—628 223 

State V. Rouse, 88—682 353 

State V. Rush, 12 Ire., 382 225 

Slate V. Scott, 64—586 225 

Slate V. Scott, 80—365 331, 333, 335 

Stale V. Seaborn, 4 Dev., 305 58 

State V. Secresi, 80 — 450 342 

State V. Sheperd, 8 Ire.. 195 58 

State V. Sheppard, 87 — 574 340 

State V. Sherrill, 82 — 693 218 

Stale V. Simons, 68 — 378 8 

State V. Simonlon, 78 — 57 * 49, 53 

Slate V. Smith, 80—410 216 

State V. Spurtin, 80 — 362 334. 339 

State T. Swepson, 81—571 57, 59 

State V. Swepson, 83 — 584 126, 334 

State V. Suggs, 89 — 527 411 

State V. Summey, 60 — 496 226 

State V. Sykes, 79—618 226 

Slate V. Thomas, 7 Ire., 381 222 

State V. Tilley, 3 Ire., 424 225 

State V. Twitty, 2 Hawks, 248 58 

Stale V. Vann, 84 — 722 333 

State V. Vinson, 63 — 335 224 

Stale V. Walker, 82—^95 339, 346 

Stale V. Ward, 2 Hawks, 443 218 

State V. Ward, 8 Ire., 530 340 

State V. Whit. 5 Jones, 224 223 

SUte V. Whitaker, 89—473 .411 

State V. Whitley, 88— 691 216 

State V. Wilkie, 85 — 513 33» 

Stale V. Young, 65 — 579 94 

Staton, Cloman v., 78—235 56, 57 

Slaion, Flemming v., 74 — 203 36 

Staton, Norfltet v., 73—546 , 394 

Sleadman v. Jones, 65 — 388 330, 354, 355 

Steamboat Company, Rush v., 67 — 47 331, 333, 344 

Steamboat Company, Rush v., 84 — 703 255 

Steamship Company, Tayloc v., 88 — 15 342 

Steele v. Com'rs, 70—137 55 

Steele v. Harris, 2 Car. L. R., 636 525 

Stevelce v. Greenlee, i Dev., 317 379 

Steinberger v. Hawley, 85 — 141 334 

Stell V. Barham, 85 — 88 347 

Stell V. Barham, 86—727 326, 328 

Stenhouse v. Davis, 82 — 432 168 

Stephens, Melvin v., 82 — 283 103, 240 

Stephenson, Arey v., 12 Ire., 34 221 

Stephenson, Coates v., 7 Jones, 124 316 

Stephenson, Wilcox v., 71 — ^409 330 

Stephenson v. Todd, 63—368 195 

Stepp, Com v., 84 — 599 66 

Stern, Brufif v., 81 — 183 114, 180, 194. 196 

I 



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Lxvr CASES CI ri:i). 



Stevens V. Smiih, 8 Ire., 38 326 

Stewart, Covington v., 77 — 148 12, 17. 18. ig 

Stewart, Smith v., 83—406 277, 278 

Stilley V. McCox, 88—18 223 

Siinson, Withers v., 79 — 341 255 

Siith V. Lookabill, 71—25 207, 212, 333. 380 

Stockton V. Briggs, 5 Jones Eq., 309 128 

Stokely, Burke v., 65—569.. , 130, 131, 169, 241 

Stokes, Heilig v., 63—612 61, 67, 76, 164, 169, 172, 175. 209, 229. 250 

Stollz, Pegram v., 67 — 144 12, 122 

Stone, Lanier v. , I Hawks, 329 267 

Stout v. Woody, 63 — 37 221, 341 

S'owe, Motz v., 83 — 434 256 

Straus V. Beardsley, 79 — 59 34. 229, 341 

Straus V. Crawford, 89 — 13. 15^ 

Strickland, Bruce v., 81 — 267 3^7 

Strickland v. Draughan, 88 — 31 5 340. 341 

Siringfellow, Rahily v., 72— 328 I94 

Street v. Bryan, 65 — 619 99, 335 

Street v. Tuck, 84—605 118, 119, 124 

Strudwick v. Brodnax, 83 — 401 3^6, 368, 369 

Stubbs, Derr v., 83 — 539 loi 

Slubbs, Walters v., 75 — 28 303 

Slump V. Long, 84 — 616 132 

Sudderih v. McCombs, 67—353 340, 344. 345. 4^0 

Sugg, Bright v., 4 Dev., 492 I33. 241 

Sugg, Dail v., 85 — 104 295, 299 

Suggs, State v., 89 — 527 411 

Suit v. Suit, 78 — 272 236 

Summey, Gheen v., 80 — 187 302 

Summey, Stale v., 60 — 496 226 

Summey, Swepson v., 74 — 551 340, 344 

Summit, Devries v., 86 — 126 67, 145, 146, 148, 154, 179. 194, 196 

Sumner V. Candler, 74 — 265 66 

Sumner v. andler, 86 — 71 374.376 

Sumner v. Chipman. 65 — 623 103 

Sumner v. M iller, 64 — 688 7 

Sumner v. Young, 65 — 579 104 

Surles, Bushee v. , 77 — 62 27, 376 

Surles, Bushee v., 79 — 51 238, 333 

Surles, Booshee v., 85 — 90 66 

Surratt v. Crawford, 87—372 250, 255, 340, 385 

Sutliff v. Lunsford, 8 Ire., 318 341 

Sutton V. Askew, 66—172 28S 

Sutton, Franks v., 86—78 129, 259 

Sutton V. McMillan, 72 — 102 118, I20, 205, 206, 249, 383 

Sutton V. Owen, 65 — 123 - . - 6, 40 

Sutton V. Schonwald, 80 — 20 233, 334 

Swaim v. McCulloch, 75 — 495 65, 316, 320 

Swain v. Fentress, 4 Dev., 601 327 

Swain v. McRae, 80— ill 39^. 401 

Swain v. Smith, 65 — 211 329 

Swepson v. Chapman, 63 — 130 \ 86 

Swepson v. Harvey, 66 — 436 97i 105, 207, 212 

Swepson, Johnson v., 84 — 449 --- 47 

Swepson, Jones v., 79 — 510 128, 133 

Swepson v. Summey, 74 — 551 340, 344 

Swepson, State v., 81—571 57, 59 

Swepson, State v., 83—584 126. 334 



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CASKS CHKI). LXVIl 



PAGE. 

Swcpson V. Turner, 76 — 115 200, 395 

Swindell, Long v., 77 — 176 .. 47, 90, 239 

Sykes, Siaie v., 79 — 618 226 

Sykes. Wilson v.. 83 — 215 91 

Sy me v. Wroughton, 84 — 1 14 325 

Syme v. Broughton, 85 — 367 373 

Syme v. Bunting. 86 — 175 50, 90, 118. 231 

Syme v. Riddle, 88 — 463 26 

Symons, Hutchinson v., 67—156 249, 264, 265, 282. 283, 285, 289 

Tabb V. Williams 4 Jones Eq., 352 .76 ' 

Tabor v. Ward, 83 — 291 ... 367, 377 

Tally V. Reid. 72 — 336 93, 204 

Tally V. Reed, 74 — 463 265 

Tankard v. Tankard. 79 — 54 221 

Tankard. Windley v.. 88 — 223. 297 

Tarboro, Gatlin v.. 78 — 119 344 

Tate V. Connor, 2 Dev. Eq., 224 87 

Taie, Graham v., 77 — 120 84 

Tate V. Greenlee, 3 Murph., 556 224 

Tate. Howerton v., 66 — 231 8, 9, 400, 402 

Tale, Howerton v., 66 — 431 62 

Tate, Howerton v., 68 — 546 394 

Tate, Howerton v., 70 — 161 395, 396 

Tate V. Morehead, 65 — 681 187, 395 

Tale, Mott v., 66-- 231 . 402 

Tale V. Phillips. 77 — 126 84 

Tate V. Powe, 64 — 644 7, 8, 61, 108, 137, 139. 386 

Tate V. Southard, 3 Hawks, 119 15 

Tatem, Meekins v., 79 — 546 230, 341 

Tatem, Morphew v.. 89 — 183 351 

Tayloe v. Steamship Commpany, 88 — 15 . 342 

Taylor v. Brower, 78—8 337, 339, 345 

Taylor v. Harris, 82 — 25 62, 138 

Taylor v. Harrison, 2 Dev., 374 13 

Taylor, Nash v. , 2 Hay. , 1 74 236 

Taylor v. Rhine, 65 — 530 302 

Taylor v. School Committee, 5 Jones, 98 401 

Taylor v. Taylor, 76 — 433 367, 370 

Taylor v. Tavlor, 83 — 116 63, 257 

Taylor. Webb v., So— 305 122, 155, 157 

Taylor, Weber v., 66—412 328 

Taylor, Wharton v., 88 — 230 296, 300. 301, 305 

Teague v. James, 63 — 91 6 

Tel^raph Company v. Railroad, 83 — 420 334 

Ten Broeck v. Orchard, 74 — 409 49, 198 

Ten Broeck v. Orchard, 79 — 518 103, 115, 122 

Terrell v. Walker, 66 — 224 102 

Terry, McKeilhan v., 64 — 25 . . . / 299 

Terry V. Vest, II Ire., 65 321 

Thaxton, Bitting v.. 72 — 541 10, 79, 97, loi 

Thaxton v. Wilfiamson, 72 — 125 241, 24-^, 381, 410 

Xhees, Wescott v., 89—55 408 

Thorn, Coble v., 72 — I2i 302, 303 

Thomas, Crump v., 89 — 241 126 

Thoma.s v. Commissioners, 66 — 522 400, 401 

Thomas, Curlee v., 74 — 51 305 

Thomas v. Kelly, 74 — 416 53. 372 

Thomas. Lash v. , 86 — 313 5 

Thomas, March v., 63 — 249 327. 329 



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LXVIII CASES CITED. 



Thomas v. Myers, 87 — 31 335 

Thomas, Raisin v., 88 — 148 99 

Thomas v. Simpson, 80 — 4 102, 127. 356 

Thomas, State v., 7 Ire., 381 222 

Thomas v. Whitehead, 65 — 637 194 

Thomas, Williams v., 78—47 218, 238 

Thomegeux v. Bell, Mart., 44 378 

Thomas v. Womack, 64 — 657 . . .62, 125, 177 

Thompson, Battle v. , 65 — 406 loi 

Thompson v. Badham, 70—141 51 

Thompson v. Berry, 64 — 79 . . 259, 286, 390 

Thompson v. Berry, 64 — 8i 61 

Thompson, Bynum v., 3 Ire., 578 15 

Thompson v. Floyd, 2 Jones, 313 326 

Thompson v. Humphrey, 83 — 416 375 

Thompson, Laws v., 4 Jones, 104 273 

Thompson, Moore'v., 69 — 120 . 16 

Thompson v, Peebles, 85 — 418 263 

Thompson, Rowland v., 64 — 714 1 11, 341 

Thompson, Rowland v., 65 — no 8, 232 

Thompson V. Shamwell, 89 — 283 381 

Thompson, Welfare v., 83 — 276 23, 26 

Thompson v. Williams, i Jones Eq., 176 405 

Thome, Jones v., 80^72 166, 381. 410 

Thornton, Hinsdale v., 74 — 167 265 

Thornton, Hinsdale v, , 75 — 381 265 

Thorp, Norwood v., 64— 682 247 

Threadgill, Bruner v., 88 — 361 .12 

Threadgill, Grady v., 13 Ire., 228 270 

Threadgill V. Railroad, 73 — 178 394 

Threadgill, Willoughby v., 72 -438 220 

Tiddy, Bank v., 67—169 loi, 331, 333, 336 

Tiller, Mask v., 89 — 423 407, 408 

Tillery V. Wrenn, 86—217 ..168 

Tilly, State v., 3 Ire., 424 225 

Timberlake V. Green, 84— 658 26 

Timberlake, Scott v., 83—382 99 

Tindellv. Wall. Bus., 3 188 

Tipton, Edwards v., 85 — 479 24 

Titman v. Rhyne, 89—64 248, 263. 264 

Todd V. Outlaw, 79 — 235 76 

Todd, Stephenson v., 63 — 368 195 

Tomlin, Hyatt v., 2 Ire., 149 76 

Tomsy. Warson, 66 — ^417.-- 53. 76, 178, 195 

Torrence v. Alexander, 85 — 143 23, 26 

Transportation Co., Evans v., 5 Jones, 331 195 

Tredwell V. Blount, 86 — 33 40, 41, 98 

Tredwell v. Graham, 88 — 208 374, 375 

Tredwell v. Reddick, i Ire., 56 15 

Trexler v. Newsom, 88 — 13 171 

Trezevant, Phillips v., 70—176 256, 285, 287 

Trice, Foust v., 8 Jones, 490 .248 

Tritt, Fulbright v., 2 D. & B.,491 67 

Tritt. Smith v., i D. & B., 241 267 

Trotter, Garrett v., 65 — 430 10, 59, 79, 80, 94, 95, 122, 124, 125, 126, 332 

Troutman, Lippard v., 72 — 551 12, 20, 21, 32, 42 

Trustees v. Satchwell, 71 — in 116 

Tuck V. Hunt, 73 — 24 ^> 393 

,Tuck, Street v., 84—605 118, 119, 124 



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CASES CITED. LXIX 



Tucker v. Baker, 86 — i 91, 94, 95. 38? 

Tucker v. Davis, 77 — 330 146 

Tucker v. Raleigh, 75 — 267 403 

Tucker, Hamlin v., 72—502 no 

Tupper, Perry v., 70—538 354 

Tupper, Perry v.. 71—385 .354 

Tupper, Perry v., 77 — ^413 231, 238 

Turlington v. Williams, 84 — 125" 334 

Turner, Brown v., 70—93 40, 390, 393. 394. 399, 40? 

Turner, Burke v., 85 — 500 229, 230, 231, 335 

Turner, Burke v., 89 — 246 235 

Turner v. Foard, 83 — 683 342, 344 

Turner, Goldsborough v. , 67 — 403 213 

Turner, Swepson v., 76—115 ... 200, 395 

Turpin v. Kelly, 85—399... 253 

Turrenline, Nesbilt v., 83 — 535 .198, 199, 200 

Turrentine, Wise v., 13 Ire., 212 ..318 

Tweed, Dellinger v., 66—206 295, 305 

Twitty V. Logan, 8a — 69 199 

Twilty V. Ix)gan, 85—592 337 

Twitty V. Logan, 86 — 712 133 

Twitty, Slate v., 2 Hawks, 248 58 

Twitty, Whitesides v., 8 Ire., 431 335, 341 

Tyson. Kitchen v., 3 Mur., 314 378 

Underwood, Claflin v., 75 — ^485 .260 

Underwriters, LaFountain v., 79 — 514 ^84, 288 

Underwriters, LaFonlaine v., 83 — 132 ,287, 289, 294, 387 

University v. Blount, Term 13 15 

University v. Lassiter, 83 — 38... 60, 76, 130, 204, 205, 206, 207, 228, 236, 383 

University v. R. R., 76 — 103 93, 399 

Utley, Adams v., 87 — 356 H2 

Utley v. Foy. 70—303 40, 41, 98, 344 

Utley v. Peters, 72 — 525 % 71 

Utley, White v., 86-415 231, 236 

Uzzle V. Com'rs, 70 — 564 403 

Vallentine v. Holleman, 63 — 475 6 

Valleniine, Moore v., 77 — 188 167 

Vann, Peterson v., 83 — 118 241, 320, 381 

Vann, State v. , 84—722 , 333 

Vannoy v. Haymore, 71 — 128 302 

Vaughan, Boyett v., 79—528 97, 98, 99, 106 

Vaughan, Boyett v., 85 — 363 98, 99, 106 

Vaughan, Boyett v., 86—725 354 

Vaughan v. Hines, 87—445 12, 25, 27, 30, 33 

Vann v. Pipkin, 77— 408 394 

Vaughan, Pumell v., 77 — 268 ,. 170 

Vaughan, Purnell v., 80 — ^46 64,99,139 

Vaughan v. Vincent, 88 — 116 82, 86, ig^ 

Verble, March v., 79 — 19 ,126, 224. 374 

Vernon, Griel v., 65—76 128, 132 

Vcmoy. Etheridge v., 71 — 184 40, 48, 427 

Vest v. Cooper, ^8 — 131 333 

Vest, Terry v., u Ire., 65, 321 

Vestal V. Sloan, 83—555 236, 316 

Vick V. Pope, 81—22 42, 8i, 131, 152, 205, 248 

Vincent, Vaughan v., 88 — 116 82, 86, 199 

Vinson, State v., 63—335 224 

Von Glahn V. DeRossett, 76—292 .47,84,85,104 

Von Glahn v. DeRossett, 81-467 26 



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LXX CASKS CITED. 



PAGE. 

Von Glahn v. Harris. 73 — 323 46, 88 

Von Glahn v. Latimer, 73 — 333 46 

Von Glahn v. Savage, 73 — 333 88 

Waddell, Melvin v., 75 — 361 12, 14, 19, 20 

Wade V. Newbcrn, 72—498 337, 339, 345 

Wade V. Newbem, 73 — 318 133 

Wade V. Odeneal, 3 Dev.. 423 132 

Wade V. Saunders, 70 — 277 1 46, 47. 267, 268 

Wadsworth, Patterson v. , 89 — 407 236 

Wagner, Clarke v., 78 — 367 203, 262 

Wagoner v. Railroad, 5 Jon., 367 68 

Waggoner, Hiatt v., 82 — 173 134 

Wahab v. Smith, 82 — 229 137 

Walker v. Brem, 76 — 407 166 

Walker, Bullard v., 7 Jon., 84 298 

Walker v. Dicks. 80—263 99 

Walker V. Gurley, 83—429 134. 166, 175, 381 

Walker, McKciihan v. 66—95 . 248, 265, 282. 283, 285 

Walker, State v., 82—695 339, 346 

Walker, Terrell v., 66 — 224 102 

Walker V. Williams, 88 — 7 346.356 

Wall V. Covington, 76—150 234, 315, 320 

Wall V. Covington, 83 — 144 126 

Wall V. Fairley, 73 — 464 46, 93 

Wall V. Fairley, 77 — 105 48, 249, 272 

Wall, Hoskins v., 77 — 249 297, 301 

Wall, TindcU v.. Bus.. 3 188 

Wallace, Cedar Falls Company v., 83 — 225 210, 21 1 

Wallace, Simpson v., 83 — 477 296, 308 

Wallace. Williams v., 78- -354 .15, 16, 17 

Wallinglon v. Montgomery, 74 — 372 333 

Wallis, Logan v.. 76—416 50, n8, 119, I20 

Walsh V. Hall, 66—233 .• 97, loi, 103, 123, 246 

Walsh, Houston v. , 79 — 35 143, 145, 147, 257, 260 

Walston v. Bryan, 64 — 764 134, 284 

Walton V. Gatlin. 60—310 , 344 

Walton V. McKesson, 64 — 77 86 

Walton V. McKesson, 64 — 154 6 

Walton V. Mills, 86—280 166, 170 

Walton V. Pearson, 82 — 464 325, 339 

Walton V. Pearson, 85- 34 27,34. ia6, 133 

Walton, Scott v., 67 — 109 296, 303 

Walton V. Walton, 80—26 205 

Ward, Jarman v., 67—32 143, 155, 157, 158, 159, 245 

Ward, Jones v., 77 — 337 157, 158 

Ward V. Phillips, 89 — 215 203, 207, 412 

Ward V. Sheppard, 2 Hay. , 283 404 

Ward, State v., 2 Hawks, 443 2i8 

Ward, State v., 8 Ire., 530 340 

Ward, Tabor v., 83 — 291 367, 377 

Waring, Bernheim v., 79 — 56 232 

Warren, Bland v., 65 — 372 378 

Warren, Coffield v., 72 — 223 134 

Warren, Daughtry v., 85 — 136 168 

WaTen, Devries v., 82 — 356 loi 

Warren, Skinner v., 81 — 373 267, 268. 274 

Warren v. Warren, 84 — 614 22 

Warson, Toms v., 66—417 53. 76, 178, 195 

Wasson v. Linster, 83 — 575 139 



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CASES CITED. LXXI 



PAGE. 

Wasson, Wittowsky v., 71 — 451 224 

Waters v. Siubbs, 75 — 28 303 

Watkins, McDaniel v., 76 — 399 128, 204 

Waikins v. Overby, 83 — 165 296 

Watkins. Witkowski v., 84 — 457 212 

Watson V. Davis, 7 Jones, 1 78 218 

Watson, Dodd v. , 4 Jones Eq. ,48 404 

Watson V. Dodd, 72 — 240 427 

Watson V. Shields, 67 — 235 134 

Waiterson. Gamble v., 83 — 573 301 

Watts V. Hell, 71 — 405 333 

Watts, Carlton v., 82 — 212 295, 298, 299, 304 

Watts V. Leggett, 66—197 .. 296, 308 

Weaver V. Jones, 82 — 440. _ 131 

Weaver v. Mining Company, 89 — 198 329 

Weaver v. Parker, Phil., 479 298 

Weaver V. Roberts, 84 — 493 70 

Webb V. Commissioners, 70 — 307 403 

Webb V. Kinsland, 89 — .._ 153 

Webb V, Taylor, 80 — 305 122, 155, 157 

Weber v, Taylor, 66 — 412 328 

Webber v. Webber, 79 — 572 378 

Webster, Dalton v. , 82—279 334 

^Vebster v. Laws, 86—178 ^7. 87 

Weeks v. Weeks, 79 — 77 241 

Weil v. Everett, 83 — 685 340 

Weiller v. Lawrence, 81 — 65 127. 138, 282, 283, 285, 384 

Weinstein v. Patrick, 75—344 375. 376 

Weith, Powell v., 66—423 132 

Weith, Powell v., 68 — 342 132 

Weith, Winslow v., 66—432 86 

Welch, Bodenhamer v., 89 — 78 409 

Welch v. Kinsland, 89 — 179 203, 332, 383 

Welch, Governor v., 3 Ire., 249 67 

Welch V. Macy, 78—240 305. 30S 

Welhorne v. Gordon, I Mur. , 502 . 321 

Welfare v. Thompson, 83 — 276 23, 26 

Welker v. Bledsoe, 68 — 457 393 

Wellbom v. Simonton, 88 — 264 100, 237 

Welling v. Burroughs, 8 Ire. Eq., 61 406 

Wellons v. Jordan, 83—371 .. 341 

WelLs v. Clements, 3 Jon., 168 224 

Wells V. Sluder, 68—156 355 

W^escott V. Thecs, 89—55 408 

W^essell V. Rathjohn, 89—377 : 411 

West, J araes v., 76 — 290 297 

West V. Massey, 7 Jon., 143 298 

Wescott V. Hewlett, 67 — 191. iio 

Western N. C. R. R. Co., Piatt v., 65—74 12 

Western N. C, R. R. Co., Avery v.. 64 — ^491 25 

Western N. C. R. R. v. N. C. R. R., 88—79 166 

Wcthcrell v. Gorman, 74 — 603 277, 278 

Wethcrington, Hudson v., 79 — 3 210 

Wharton v. Commissioners, 82 — 1 1 29, 34 

Wharton v. Currituck, 82—11 64, 84, 139 

Wharton v. Leggett, 80—169 308 

Wharton v. Moore, 84 — 479 276, 279 

Wharton v. Taylor, 88—230 296, 300, 301, 305 

Wheatley, Kennedy v., 2 Hay., 402 19 



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LXXtl CASES CITED. 



PAGE. 

Whedbee v. Riddick, 79 — 521 .41, 100 

Wheeler V. Cobb, 75—21 67, 70, 75, 179, 180, i8r 

Whisenhunt v. Jones, 78 — 361 203, 262 

Whisenhunt V. Jones, 80 — 348 341 

Whisnant, Andrews v., 83 — 436 327 

Whit, State v., 5 Jon., 224 223 

Whitaker, BrassBeld v., 4 Hawks. 309 264 

Whitaker V. Elliott, 73 — 186 301 

Whitaker v. Forbes, 68 — 228 92 

Whitaker, Hughes v. , 84 — 640 28 

Whitaker, Perry v., 72 — 578 330 

Whitaker, Perry v., 77 — 102 333 

Whitaker, Shields v., 82 — 516 220, 341 

Whitaker, Singeltary v., Phil. Eq., 77 380 

Whitaker, State v., 89 — 473 411 

Whitaker, Whitaker v. , 71 — 447 39 

White, Armour v., 2 Hay., 69 15 

White V, Beaman, 85 — 3 12.36 

While V. Clark, 82—6 221, 342 

White, Dewey v. , 65 — 225 53 

White, Hudgins v., 65 — 393 128 

While V. Jones, 88--166 277 

White. Horton v., 84 — 297. 171, 199 

White V. Utley, 86^41 5 231, 236 

Whiu V. Snow, 71 — 232 129, 205 

White V. White 84—340 80 

White, Wilson v.. 80—280 225 

Whitehead, Atkinson v., 77 — 418 231,234 

Whitehead v. Hellen, 77 — 69 283 

Whitehead, Hirsh v., 65—516 155, 157, 158, 163, 172, I73 

Whitehead v. Latham, 83 — 232 249 

Whitehead, Morris v., 65 — 637 no, 174, 196 

Whitehead, Pope v., 68 — 191 ^76 

Whitehead v. Smith, 8 Jon., 351 354 

Whitehead, Thomas v., 65 — 637 194 

Whitehurst, Carney v., 64 — ^426 46 

Whitehurst, Latham v., 69 — 33 177 

Whitesides v. Green, 64 — 308 374 

Whitesides V. Twitty, 8 Ire., 431 335.341 

Whitesides v. Williams, 66—141 343 

White, Wilson v., 80 — 280 153 

White Soapstone Co., Clegg v., 66 — 391 209, 229 

Whitfield, Nelson v., 82—46 228 

Whitford v. Foy, 71 — 527 236 

Whitley, State v., 88—691 ._.2i6 

Whitman v. Guano Company, 65 — 552 I78 

Whitted, Monroe v., 79 — 508 131 

Wicker, Ellington v., 87 — 14 64, 130 

Wicker, Richardson v., 80 — 172 309 

Wiggins, McCormac v., 84 — 278 42, 48, 89 

Wiggins V. McCoy, 87—499 125. 335 

Wilcox V. Stephenson, 71 — ^409 330 

Wilcox, Shine v., I D. & B. Eq.. 631 404 

Wilder v. Lee, 64—50 169, 250 

Wiley, Oliver v., 75—320 86, 89 

Wiley V. Lineberger, 88 — 68 326 

Wilkerson v. Budianan, 83 — 296 367, 377 

Wilkes, Burton v., 66—604 lOl. 218 

Wilkes, State v., 85 — 513 332 



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CASES CITED. LXXIIl 



Willard, Blackwell v., 65—555 ... 107 

Willard, Farmer v., 75 — 401 126, 318, 341, 345 

Willard, Navassa Guano Company v., 73 — 521 25, 73 

Willard, Heniy v., 73 — 35 375 

Willard, Morris v., 84 — 293 170 

Willey V. Galling, 70 — 410 39 

Williams v. Beasley, 13 Ire. ,112 » 356 

Williams, Biggs v. , 66-— 427 39. 43» 200 

W^illiams, Boyden v. , 80—95 134 

Williams. Boyden v , 84—608 58 

Williams, Brown v.. 83 — 684 324, 339 

Williams, Brown v., 84 — 116 327, 328 

Williams v. Buchanan, i Ire., 535 15 

Williams, Burns v., 88 — 159 80 

Williams, Calvert v., 64 — 168 41 

Williams, Clark v., 70—679 239, 240 

Williams v. Council, 4 Jones, 206 15, 266 

Williams v. Gorman, 2 Hay., 155 328 

Williams v. Green, 80—76 249 

Williams v. Green, 68 — 1S3 133, 293 

Williams, Hinsdale v., 75 — 430 301 

Williams v. Hunter, 3 Hawks, 545 183 

Williams v. Johnston, 82 — 288 376 

Williams v. Kivett, 82 — no 34« 

Williams v. Lanier, Bus., 30 405 

Williams, Marsh v., 63 — 371 177, 178, 180, 181 

Williams V. Miller, 7 Ire., 1 86 15 

Williams v. Mullis, 87 — 159 13, 22, 249, 255, 256 

Williams, Murchison v., 71 — 135 247 

Williams, Rives v., 63-128 86 

Williams v. Rockwell, 64—325 380 

Williams v. Sharpe, 70 — 582 126, 134 

Williams, Sharpe v., 76—87 247 

Williams, Tabb v., 4 Jon, Eq., 352 76 

Williams v. Thomas, 78 — 47 2i8, 238 

Williams, Thompson v. , i Jon. Eq., 176 405 

Williams, Turlington v., 84 — 125 334 

Williams, Walker v., 88—7 346, 356 

Williams v. Wallace, 78 — 354 15, 16, 17 

Williams v. Williams, 6 Ire. Eq., 20 266 

Williams v. Williams, 70 — 189 11, 12 

Williams v. Williams, 70—665 131 

Williams v. Williams, 71 — 427 328 

Williams v. Williams, 71—216 427 

Williams v. Williams, 85—383 250, 253. 236 

Williams, Whitesidcs v., 66—141 343 

Williamson v. Buck, 80—308 156 

Williamson, Cape Fear v., 2 Ire., 147 66 

Williamson v. Canal Company, 78 — 156 221, 230, 341, 342 

Williamson v. Canal Company, 84—629 362 

Williamson v. James, lo Ire., 162 265 

Williamson v. Kerr, 88 — lo 274 

Williamson, Thaxton v., 72 — 225 241, 243, 381, 410 

Willottghby, Gotten v., 83 — 75 157 

Willoughby, Robinson v., 67 — 84 125 

Willoughby v. Threadgill, 72—438 220 

Wilmington v. Atkinson, 88 — 54 358 

Wilmington, French v., 75 — 387 176. 333 

Wilmington, London v., 787-109. . . . , 167 

J 



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Google 



LXXrV CASES CITED. 



PAGB. 



W. A W. Railroad, Powell v., 68—395 223. 224, 227 

Wilson V. Arentz, 70—670 39, 42, 49. 88, 92 

Wilson Y. Bank, 72— 621 88 

Wilson, Bank v., 80—200 74, 76. 382 

Wilson V. Barahill, 64 — 121 143, 146, 154, 180 

Wilson, Bright v., Conf., 24 404, 406 

Wilson, Henley v., 77 — 216 41 

Wilson, Henley v., 83—405 17 

Wilson V. Hollev, 66 — ^407 225 

Wilson V. Hutchinson, 74 — ^432 .327 

Wilson, Kitchen v., 80—191 12, 15^ 17, 96 

Wilson V. Lineberger, 82 — ^412 85, 91, 332 

Wilson V. Lineberger, 84 — 836 327 

Wilson V. Manufacturing Company, 88^5 178, 179, 193 

Wilson V. Moore, 72—558 7, 121, 123, 125, 135 

Wilson V. Moore, 82 — 558 64 

Wilson V. Patton, 87 — 318 250, 300 

Wilson, People v., 72 — 155 392 

Wilson, Railroad v., 81—223 4S 

Wilson V. Respass, 86—112 156, 170 

Wilson V. Seagle, 84—110 342, 418 

Wilson V. Sparks, 72 — 208 299 

Wilson V. Sykes, 84 — 215 91 

Wilson V. White, 80—280 155, 225 

Wilton, Hill v., 2 Murph., 14 ts 

Winbome v. Bryan, 73 — 47 221, 333, 336 

Winbume, Grant v.. 2 Hay., 56 15 

Winchester V. Gaddy, 72 — 115 296 

Windley, Blount v., 68 — i loi 

Windley V. Bradway, 77—333 70,179 

Windley, Rowland v., 82—131 203, 207 

Windley V. Tankard, 88 — 223 297 

Winbeny V. Koonce, 83 — 351 _ 249 

Windley, Rowland v., 82 — 131 105 

Winfield v. Burton, 79 — 388 53 

Winslow V. Alexander, 2 D. & B., Q 128,132 

Winslow V. Commissioners, 64 — 218 86, 284, 4O1 

Winslow, Johnson v. , 63 — 552 12 

Winslowv. Weith, 66—432 86 

Winslow V. Wood, 70—430 100 

Winstead, Alspaugh v., 79 — 526 112 

Winstead, Batts v., 77 — 238 12, 28 

Winston, Alexander v., 8i — 191 -.39 

Winston v. Dalby, 64 — 299 50 

Wisev. Turrentine, 13 Ire.. 212 318 

Wiseman V. Penland, 79 — 197 226,241 

Withers V. Stinson, 79 — 341 256 

Wittkowsky V. Logan, 86—540 335 

Wittkowsky V. Wasson, 71—451 224 

Wittekowski v. Watkins, 84 — ^45 7 212 

Wolfe, Alexander v., 83 — 272 90 

Wolfe, CUwson v., 77 — 100 60, 122, 135, 344 

Wolf V. Davis. 74 — 597 241 

Wolf enden, Campbell v., 74 — 103 167 

Womack, Thomas v., 64—657 62. 125, 177 

Womble v. Fraps, 77 — 198 97, 104, 207, 212 

WombleV Leach. 83—84 80 

Wood V. Harrell, 74—388 143. 180 

Wood V. Harrison, i D. & B., 356 : 263 



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CASES CITED. LXXV 



PAGE. 



Wood, Skinner Y., 76 — 109 I40 

Wood, Winslow v.. 70—430 100 

Wood, Yeargin v., 84 — 326 133, 386 

Woodard, Boddie v., 83—2 <^> 65, 334 

Woodard, Hice v., 12 Ire., 293 2»i 

Woodard, Moore v., 83 — 531 156 

Woodley, Etheridge v., 83 — 11 27, 31, 61, 67, 76 

Woodfin, Crawley v., 78—4 333 

Woodfin v.. Beach, 70— 455 I7S 

Woodfin, Harshawv., 64 — 568 99 

Woodhottse v. Simmons, 73 — 30 .11, 35, 373 

Woodley V. Gilliam, 64—649 8, 9, 61, 137 

Woodley V. Gilliam, 67 — 237 , 263, 264 

Wooley V. Robinson, 7 Tones, 30 320 

Woodward, Moore v., 83 — 531 98 

Woodsworth V. Davis, 75 — 159 — 1 13 

Woody V. Jordan, 69—189 -6a, 67, 87, 100, 146, 157, 158, 245, 284, 386 

Woody, Stout v., 63 — 37 221, 341 

Wootenv. Matdtsby, 6^462 50,90, 119 

Worsley V. Bryan, 86-^-343 ...248, 263 

Worthy. Cox, 89—44 381 

Worthy. Gray, 6 Jones Eq., 4 203, 352, 383 

Worthy. Barrett, 83 — 199 402 

Wrenn, Tillery y., 86—217 168 

Wright, Armstrong y., i Hawks, 93 215, 334 

Wright, Blackwelfy., 74 — 733 427 

Wnghty. McCormick, 67—27 115 

Wright. Meroneyy., 84 — 336 350, 354 

Wriston, Alexander y., 81 — 191 43 

Wychey. Newsom, 87 — 144 61 

Wychey. Wyche, 86—96 295 

Wynne. Clifton y., 81—169 W 

Wynne, Kiyett y., 89—39 410 

Wynne y. Prairie, 86—73 129, 205, 206 

Wjmne, Rencher y., 86— 268 29t 

Wynns, Montgomery y., 4 D. & B., 527 _ 15 

Yarborough y. Bank, 2 Dey.. 23 263,264 

Yates y. Yates, 76—142 20 

Yeargin y. Siler, 83 — 348 63 

Yeargin y. Wood, 84-326 133.386 

York, Baldwin y., 71—463 85. 171, 207, 248 

York, Deloachy., 3 Hawks, 36 318 

Young. Broylesy., 81—315 23, 24, 255, 256 

Young, Dula y., 70 — 450 86 

Young, Gill y., 82—273 47. 88 

Young, Gill y., 88—58 125, 126 

Young y. Greenlee, 82 — ^346 52 

Young y. Greenlee, 85 — 593 128, 428 

Young y. Griffith, 79 — 201 99 

Young y. Griffith, 84—715 -.6 

Young, Loye y., 69—95 180, 181 

Young, Martin y., 85 — 156 34, X25 

Youngy. Phifer, 72 — 529 28 

Young y. Rollins, 85 — 485 164, 172, 176, 198, 199, 800, 283, 398 

Young, State y., 65 — 579 94 

Young, Sumner y., 65 — 579 104 

Youngy. Young, 81—91 87, 90, 119, 120 

Younte, HaUy., 87—285 66, 239, 347 



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TABLE OF THE SECTIOHS 

OF THE 

CODE OF CIVIL PROCEDURE, 

AS CITED IN 

CHAPTER TEN OF THE CODE OF 1883. 



c. c. p. 


Code. ! 


C. C. P. 


Code. 


C. C. P. 


Code. 


C. C. P. 


Code. 


I 


125 


47 


168 


92 


232 


150 


292 


2 


126 


48 


169 


93 


233 


151 


293 


3 


127 


49 


170 


94 


238 


152 


294 


4 


128 


50 


171 


95 


239 


153 


295 


5 


129 


51 


172 


96 


240 


154 


296 


6 


130 


52 


173 


98 


241 


'55 


297 


7 


131 


53 


174 


99 


242 


156 


298 


9 


132 


54 


175 


100 


243 


157 


299 


12 


133 


55 


177 


lOI 


244 


. 158 


300 


13 


134 


56 


178 


102 


245 


159 


301 


14 


152 


57 


179 


103 


246 


1 160 


302 


15 


135 


58 


180 


104 


247 


161 


303 


16 


136 


59^ 


181 


105 


248 


162 


304 


17 


138 


60 


183 


106 


249 


163 


305 


18 


139 


61 


184 


107 


250 


164 


306 


19 


140 


62 


185 


108 


251 


165 


307 


20 


141 


63 


186 


109 


252 


166 


308 


21 


142 


64 


188 


no 


254 


167 


309 


22 


143 


65 


189 


113 


255 


168 


310 


23 


144 


66 


190 


115 


256 


169 


3" 


24 


145 


67 


191 


116 


257 


170 


312 


25 


146 


68 


192 


117 


258 


171 


313 


26 


147 


69 


195 


118 


259 


172 


314 


27 


148 


70 


199 


119 


260 


173 


315 


28 


149 


71 


209 


120 


261 


174 


316 


29 


150 


72 


210 


121 


262 


175 


317 


30 


151 


74 


213 


122 


263 


176 


321 


31 


152 


75 


280 


123 


264 


177 


322 


32 


153 


76 


281 ^ 


124 


265 


178 


323 


33 


154 


78 


282 


125 


266 


179 


324 


34 


155 


79 


2B3 


126 


267 


180 


325 


35 


156 


81 


216 


127 


268 


181 


326 


36 


157 


82 


217 


128 


269 


182 


327 


H 


158 


83 


218 


129 


270 


183 


328 


38 


159 


84 


219 


130 


271 


184 


329 


39 


160 


85 


220 


131 


272 


185 


330 


40 


161 


86 


221 


132 


273 


186 


331 


41 


162 


87 


222 


133 


274 


186 


332 


42 


163 


87 


223 


134 


275 


187 


333 


43 


164 


88 


227 


135 


276 


188 


334 


44 


165 


89 


228 


136 


277 


189 


338 


45 


i66 


90 


229 


148 


290 


190 


339 


46 


167 


91 


231 


149 


291 


191 


340 



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CLARK S CODE OF CIVIL PROCEDURE. 

TABLE OF SECTIONS, &c.— Continued. 



c. c. p. 


Code. 


C. C. P. 


Code. 


C. C. P. 


Code. 


C. C. P. 


Code. 


192 


341 


234 


410 


283 


532 


335 


582 


193 


342 


235 


411 


285 


533 


336 


583 


194 


343 


236 


412 


286 


534 


337 


584 


195 


344 


237 


413 


287 


535 


338 


585 


196 


345 


238 


414 


288 


536 


339 


586 


197 


347 


239 


415 


289 


537 


340 


5^Z 


197 


348 


240 


416 


290 


539 


341 


588 


I9« 


350 


241 


417 


292 


540 


342 


589 


199 


351 


242 


418 


294 


541 


343 


590 


200 


353 


243 


419 


295 


542 


344 


594 


201 


349 


244 


^ 420 


296 


544 


345 


594 


201 


355 


245 


421 


297 


546 


345 


346 


202 


356 


246 


422 


298 


547 


346 


595' 


203 


357 


247 


423 


299 


548 


348 


596 


204 


359 


248 


424 


300 


549 


349 


597 


205 


360 


249 


425 


301 


550 


353 


597 


206 


362 


250 


430 


302 


551 


354 


598 


207 


363 


251 


431 


303 


552 


356 


599 


208 


369 


252 


433 


304 


554 


357 


600 


209 


370 


253 


434 


305 


555 


358 


601 


210 


371 


254 


435 


306 


556 


359 


602 


211 


372 


255 


437 


307 


557 


361 


194 


212 


373 


256 


440 


308 


558 


362 


61,3 


213 


374 


257 


441 


309 


559 


363 


604 


214 


376 


258 


442 


310 


560 


364 


605 


215 


379 


259 


443 


311 


554 


365 


606 


215 


380 


260 


447 


312 


561 


366 


607 


215 


381 


261 


448 


313 


562 


369 


609 


215 


382 


264 


488 


314 


563 


370 


6io 


216 


384 


265 


489 


315 


567 


371 


611 


217 


385 


266 


490 


316 


568 


372 


612 


218 


388 


267 


491 


317 


569 


373 


613 


219 


391 


268 


492 


318 


223 


374 


614 


220 


392 


269 


493 


322 


224 


375 


615 


221 


393 


270 


494 


323 


225 


376 


617 


222 


394 


270 


495 


324 


226 


377 


618 


223 


397 


270 


496 


325 


570 


378 


^19 


224 


398 


271 


497 


326 


571 


379 


620 


225 


399 


272 


498 


327 


572 


381 


621 


226 


400 


273 


499 


328 


573 


383 


624 


227 


401 


274 


500 


329 


575 


387 


630 


228 


402 


276 


525 


330 


576 


492 


253 


229 


403 


277 


526 


331 


578 






230 


407 


278 


527 


332 


579 






232 


408 


279 


528 


333 


580 






233 


409 


282 


529 


334 


581 







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CLARK S CODE OF CIVIL PROCEDURE. 



TABLE 

Of Sections of Ch. 17 Battlers JRevisai, (other than the See^ 
tions of the original C. C. JP.) as cited in Chapter Ten of 
the Code, 



Ch. 17. 


Code. 


Ch. 17. 


Code. 


Ch. 17. 


Code. 


Ch. 17. 


Code. 


54 « 


176 


259 d 


445 


262 J 


482 


381 d 


623 


63 a 


187 


259 ^ 


446 


262 Jk 


483 


381 c 


623 


68 a 


193 


262 a 


473 


262 / 


484 


382 


237 


. 72 a 


211 


262 6 


474 


262 m 


485 


382 c 


237 


72 d 


212 


262 c 


475 


262 n 


486 


382 c . 


390 


175 a 


318 


262 d 


476 


262 ^ 


487 


418 


284 


175 ^ 


319 


262 e 


477 


295 a 


538 


419 


285 


175 ^ 


320 


262/ 


478 


343 ^ 


591 


420 


286 


199 d 


352 


262 ^ 


479 


343 ^ 


592 


421 


287 


200 a 


354 


262 A 


480 


343 ^ 


593 


422 


288 


259 « 


444 


262 t 


481 


381 a 


622 


424 


289 



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THE CODE OF CIVIL PROCEDURE. 



J^Ct& 1868, 

{Now amended into Chapter 10 of the Code of 1883.) 



Whereas, it is ordained by Section 1, Article IV, of the 
Constitution of North Carolina, that: 

'* The distinction between actions at law and suits in 
equity and the forms of all such actions and suits shall be 
abolished, and there shall be in this state but one form of 
action for the enforcement or protection of }»rivate rights or 
the redress of private wrongs, which shall be denominated 
a civil action ; and every action prosecuted by the people 
of the state as a party, against a person charged with a pub- 
lic offence, shall be termed a criminal action. Feigned 
issues shall also be abolished, and the fact at issue tried by 
order of court before a jury/' 

The General Assembly of the State of North Carolina, for 
the purpose of carrying into effect the said section, and reg- 
ulating the practice and procedure in civil actions, in the 
several courts of this state, do enact as follows : 

Effect* — The remedy for the enforcement of all kinds of contracts is now a 
civil action. Mitchell v. Henderson, 63 — 643. 

Date when the C. C. P. went into operation.— The Code of Civil Pro- 
cedure is one act, and no part of it went into operation before the 24th day of 
August, A. D. 1868, but it went into effect as a whole on that day. Ragland 
V. Currin, 64 — 355. 

Although the Constitution of 1868 went into effect in April of that year, still 
the courts which existed under the old system did not cease to do so, or to en- 
tertain actions until the adoption of the Code of Civil Procedure. Lash v. 
Thomas, 86—313. 

To what extent former practice in force.— So much of the Revised 
Code, in regard to the procedure in the courts as is not inconsistent with, nor 
superseded by, the Code of Civil Procedure, is still in force. Clerk's Office v. 
Huffsteller, 67 — 449. 



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CLARK'S CODE OF CIVIL PROCEDURE. 



The Code of Civil Procedure is a mere supplement to the practice and pro- 
cedure established by the Revised Code. Boylston Ins. Co. v. Davis, 74 — 78. 

The rules of pleading at common law and their essential principles still re- 
main, modified only as to technicalities and matters of form. Parsley v. Nich- 
olson, 65 — 207. 

What is repealed by the C. C. P. — The Code of Civil Procedure does not 
repeal the provisions of the Revised Code except where inconsistent with it, 
and certain portions which are expressly enumerated in C. C. P. Boylston In- 
surance Co. V. Davis, 74 — 78. [Note. This may be otherwise by the Code 
of 1883.] 

To what actions the C. C. P. is not applicable* - Actions pending at the 
time the C. C. P. was ratified are to be proceeded with and tried under the 
laws and practice in force prior to the C. C. P. Teague v. James, 63—91 ; 
Gaither v. Gibson, 63 — 93 ; Valentine v. Holloman, 63 — 475 ; Walton v. Mc- 
Kesson, 64 — 154 ; Johnston v. McArthur, 64 — 675 ; Lewis v. McNatt, 65 — 63; 
Sutton v. Owens, 65 — 123 ; Young v. Griffith, 84 — 715. 

An action founded upon a contract made prior to the ratification of the C. C. 
P. is governed by the law and practice existing before that date, although the 
action is brought since the C. C. P. Merwin v. Ballard, 65 — 168 ; Matthews 
V. Copeland, 80 — 30. 

Equity suits, pending at the adoption of the Code, should be proceeded in 
vp to final judgment, according 10 the old rules of equity procedure. Runnion 
V. Ramsay, 80 — 60. 

In an action of ejectment begun before the adoption of the C. C. P., the 
plaintiff's right depends upon his possession of the legal title, and he can not 
fcly upon his equitable title. Young v. Griffith, 84 — 715. 

Note. These exemptions from the G. C. P. practice are probably repealed by 
the Code of 1883. 



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CHAPTER TEN 



OF THE 



CODE OF NORTH CAROLINA, 1883. 



TITLE L 
GENERAL DEFINITIONS AND DIVISIONS. 



Section. 

125. Remedies. 

126. Actions. 

127. Special proceedings. 

128. Division of axitions. 



Section. 

129. Criminal action. 

130. Civil action. 

131. Remedies not merged. 

132. Definition of court; to mean 

clerk, when. 



Sec. 125. JRetnedies. C. C. JP., «. !• 

Remedies in the courts of justice are divided into — 

(1) Actions. 

(2) Special proceedings. 

Sec. 126. Actions. C. C. r., 8. 2. 1868-^9, c. 277, 8. 2. 

An action is an ordinary proceeding in a court of justice, 
by which a party prosecutes another party, for the enforce- 
ment or protection of a right, the redress or prevention of a 
wrong, or the punishment or prevention of a public offence. 

The proceedings under the C. C. P. are substantially the practice and pro 
cedure of the courts of equity, and not of the courts of common law. The 
only difference is that under the C. C. P. the summons does not follow but pre- 
cecUs the complaint. Wilson v. Moore, 72 — 558. 

Sec. 127* Special proceedings. C. C. B.,8.3. 

Every odier remedy is a special proceeding. 

TThat are Hpeeial Proceedings. — Any proceeding which, under the old 
practice, might be commenced by petition or motion upon notice, is a ** Special 
Proceeding. Tate v. Powe, 64 — 644. 

A '* proceeding " to obtain damages for the erection of a mill is a Special 
Proceeding. Sumner v. Miller, 64---688. 

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CLARK'S CODE OF CIVIL PROCEDURE. 



Also, a petition by an executor or administrator to sell lands to pay debts. 
Hyman v. Jarni^an, 65 — 96 ; Badger v. Jones, 66—305. 

Also, proceedings for the settlement of the estate of- a deceased person. Hunt 
V. Sneed, 64 — 176 ; Sprinkle v. Hutchinson, 66 — 450 ; Bell v. King, 70 — 330 ; 
Herring v. Outlaw, 70—334. 

Also, a proceeding in the nature of a creditor's bill against »n executor or 
administrator. Jerkins v. Carter, 70— .500 ; Patterson v. Miller, 72 — 516. 
The Superior Court at term has also concurrent jurisdiction of this. Haywood 
V. Haywood, 79 — 42. 

Also, a petition for dower. Felton v. Elliott, 66 — 195. 

Also, a petition to compel an executor or administrator to sell real estate to 
pay debis. Pellelier v. Saunders. 67 — 261 ; Jerkins v. Carter, 70—500. 

A proceeding in bastardy is a special proceeding. State v. Mcintosh, 64 — 
607 ; so too, a proceeding to remove an executor. Barnes v. Brown, 79 — 401, 

What are not Special Proceedings. — A suit to recover possession of land 

is not a Special Proceeding. Woodley v. Gilliam, 64 — 649. 

Mandamus is not a Special Proceeding. Howerton v. Tate, 66 — 231. 

Sec, 128. JDivision of fictions, C, C. JP,, «. 4. 

Actions are of two kindR — 

(1) Civil. 

(2) Criminal. 

Sec. 129. Criminal action. C. C. JP., 8. 5. 

A criminal action is : 

(1) An action prosecuted by the state as a party, against 
a person charged with a public oflfence, for the punishment 
thereof. 

Prosecutions for public offences are now defined as criminal actions. State 
V, Lupton, 63 — 483. 

The terms *' criminal action ** and "indictment" are synonymous in the 
Constitution and the C. C. P., and therefore it would be equally regular to en- 
title a case ** The People v. A. B. — Criminal Action," or '* State v. A. B. — 
Indictment." State v. Simons, 68 — 378. 

(2) An action prosecuted by the state, at the instance of 
an individual, to prevent an apprehended crime, against 
his person or property. 

A proceeding upon a '* peace warrant " is now a criminal action. The judges 
of the superior court are invested with a large discretion upon questions of 
costs in all criminal actions. State v. Locust, 63 — 574. 

Sec. 130. Civil action. C. C. JP., s. 6. 

Every other is a civil action. 

The term '* civil action " includes all causes which, under the old practice, 
might have been commenced by a capias ad respondendum, or were relievable 
by an ordinary bill in equity. Tate v. Powe, 64 — 644. 

Also, an action in the nature of an old bill in equity to falsify an account. 
Murphy v. Harrison, 65 — 246 

Also, a suit on a guardian bond. Rowland v. Thompson, 65 — no. 



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CLARK'S CODE OF CIVIL PROCEDURE. 9 

A proceeding in bastardy is a civil action, as distinguished from a criminal 
action. State v. Mcintosh, 64 — 607. 

A suit to recover possession of land is a civil action and not a special pro> 
ceeding. Woodley v. Gilliam, 64 — 649. 

Mandamus is not a civil action. Howerton v, Tate, 66 — 231. 

Contra^ Mandamus is now an ordinary civil action. Haymore v. Commis- 
sioners. 85 — 268. 

A proceeding under chapter 222, acts of i876-'77, in regard to ** draining 
wet lauds," is a civil action, and returnable to the term of the superior court. 
Bunting v. Stancil, 79 — 180. 

8ec. 131, Remedies not merged* C. C. B., «. 7. 

Where the violation of a right admits both of a civil and 
a criminal remedy, the right to piosecute the one is not 
merged in the other. 

Sec. 132. jyefinitian of court / to mean clerk, when. C. C. JP., 

8.9. 

In those of the following enactments which confer juris- 
diction or power, or impose duties, when the words " supe- 
rior court " or " court " in reference to a superior court are 
used, they mean the clerk of the superior court, unless 
otherwise specially stated, or unless reference is made to a 
regular term of the court, in which cases the judge of the 
court alone is meant. 

The *' superior court" in Art. IV, sec. 28, (now sec. 22) of the state consti- 
tution does not mean the court of the clerk. McAdoo v. Benbow, 63 — 361. 

Under the act of i8b8-'69, chap. 113* enacting that an executor or adminis- 
trator may apply to the *' superior court" for leave to sell land to pay debts, 
the clerk* of the court is referred to. Pelletier v. Saunders, 67 — 261. 



TITLE II. 
OENEAAL PROVISIONS AS TO CIVIL ACTIONS. 



Sbction. 

133. Forms of civil actions ; dis- 
tinction between actions at 
law and suits in equity 
abolished. 



Section. 

134. Parties designated plaintiff 

and defendant. 

135. Feigned issues abolished. 



Sec. 133. Forms of civil actions ; distinction between €ictions 
at law and suits in equity abolished. C. C. JP., s. 12. Const., 
Art. ir, s. 1. 

The distinction between actions at law and suits in equity, 
2 



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10 CLARK'S CODE OF CIVIL PROCEDURE. 

and the forms of all such actions and suits heretofore ex- 
isting, are abolished, and there shall be hereafter but one 
form of action for the enforcement or protection of private 
rights, and the redress of private wrongs, which shall be 
denominated a civil action. 

The effect upon manner of pleading^. — The essential rules of plead- 
ing at common law have not been repealed by the C. C. P. ; they have only 
been modified as to technicalities and matters of form. Parsley v. Nicholson, 
65—207. 

The C. C. P. abolishes the different forms of actions and the technical and 
artificial modes of pleading used at common law, but does not dispense with 
such degree of certainty and regularity as is essential in every system adopted 
for the administration of justice. Oates v. Gray, 66 — 442. 

The subtle science of pleading is not merely relaxed but abolished by the C. 
C. P., and the forms of pleading in civil actions and the rules by which their 
sufficiency is to be determined are those prescribed in the Code. Few, if any, 
of the ancient rules of pleading are now applicable. Moore v, Edmiston, 
70—510. 

The effect upon the form of action. — There is now but one form of action 
and mandamus is but a process of the court in that action. Belmont v. Reilly, 
71 — 260 ; llaymore v. Commissioners, 85 — 268. 

There is now but one form of action and a counterclaim may be set up by 
the defendant, if entitled by the Code to do so, irresi>ective of whether the 
action arises out of a tort or contract. Bitting v. Thaxton, 72 — 541. 

Distinction between law and equity .— The distinction between actions 
at law and suits in equity, is abolished, as to the forms of procedure, but the 
distinction between legal and equitable right? still remains. Matthews v. 
McPherson, 65 — 189. 

Distinction between actions ex contractu and ex delicto.— See Garrett 
V. Trotter, 65 — 430 ; Froelich v. Southern Express Co., 67 — 2 ; BuUinger v. 
Marshall, 70—520 ; Ashe v. Gray, 88 — 190. 

Bee, 134. Barf leu designated plaintiff and defendant, C 
€/• €/• JL^f s. ji3» 

In such action, the party complaining shall be known as 
the plaintiff, and the adverse party as the defendant. 

Sec. 135. Feigned issues abolished. C. C. B., s. 15. 

Feigned issues are abolished ; and instead thereof, in the 
cases where the power formerly existed to order a feigned 
issue, or when a question of fact not put in issue by the 
pleadings is to be tried by a jury, an order for the trial may 
be made by the judge, statiug distinctly and plainly the 
question of fact to be tried ; and such order shall be the 
only authority necessary for a trial. 

The fictitious proceedings of the old action of ejectment is abolished. 
Harkey v. Houston, 65 — 137. 



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The hoWer of a note without endorse»^ent now sues on it in his own name, 
and not as formerly, in the name of the payee. Abrams v. Cureton, 74 — 523. 

An action upon a feigned issue should be dismissed by the court ex mero 
motu, Blake v. Askew, 76—325. 



TITLE III. 
LIMITATION OF ACTIONS. 

Chap. I. AcTioiJs IN General. 

11. Actions for the Recovery op Real Prop- 
erty — Time op Commencino. 

III. Actions other than for the Recovery op 

Real Property — Time op Commencing. 

IV. General Provisions as to the time op Com- 

mencing Actions. 



CHAPTER ONE. 
ACTIONS IN GENERAL. 



Section. 

136. To what actions this title 

shall extend. 

137. Time between the 20th of 

May, 1861, and 1st January, 
1870, not to be counted. 



Section. 

138. Period of limitation — ob- 
jection must be taken by 
answer. 



5ec. 136% To what actions this title shall extend. C. C* JP^ 
B. 16. 

This title shall not extend to actions commenced before 
the twenty-fourth day of August, one thousand eight hun- 
dred and sixty-eight, nor to cases where the right of action 
accrued before that date, but the statutes in force previous 
to that date shall be applicable to such actions and cases. 
Rigrbt of action accmlngr before the €• €• P.— A right of action which 

accrued before the adoption of the Code is governed by the statutes of limita- 
tion then in force. Williams v, Williams, 70 — 189 ; Knight v. Braswell, 70 — 
709 ; Libbett v. Maultsby, 71 — 345 ; Woodhouse v. Simmons, 73 — 30 ; Bar- 



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12 CLARK'S CODE OF CIVIL PROCEDURE. 



Barham v. Lomax, 73 — 76 ; Ellis v. Scott. 75 — 108 ; Covington v. Stewart, 
77 — 148 ; Batts V. Winstead, 77 — 238 ; Johnston v. Parke, 79 — ^475 ; Blue v. 
Gilchrist, 84 — 239 ; White v. Beaman, 85 — 3 ; Hall v. Gibbs, 87 — 4 ; Crawford 
V. McLellan, 87-169. 

Interest on eaoses of action arising^ prior to C. €• P.— The same rule 
applies with regard to interest accruing upon such a cause of action. Knight 
V. Braswell, 70 — 709. 

Jadgments on causes of actions arising prior to €• €• P.— A judgment 

obtained in 1870 on a debt contracted before 1868 is subject to the provisions 
of this title whenever such judgment becomes itself causa litis, McDonald v. 
Dickson, 85 — 248. 

A judgment rendered before, though docketed after the adoption of C. C. P., 
is not subject to the limitations of this statute, but to a presumption of satis- 
faction. Johnston v. Jones, 87 — 393. 

Onardianand administration bonds executed prior to €• €• P.— Where 

an administration bond was executed prior, but the breach assigned is subse- 
quent, to the C. C. P., this chapter applies. Vaughan v. Hines, 87 — 445. 

Where the guardian qualified before the C. C. P., and the ward became of 
age after the Code, the action for non-payment by the guardian is governed by 
the C. C. P. BriggsY. Smith, 83—306. 

Sec. 137 • Time between the 20th of May^ 1861, and Janti- 
ary Ist, 1870, not to be counted, 1866''*7, c 17, «. 8* 
1873-'4, c. 34, 8. 5. 

The time between the twentieth day of May, one thou- 
sand eight hundred and sixty-one, and the first day of Jan- 
uary, one thousand eight hundred and seventy, shall not 
be counted, so as to bar actions or suits, or to presume sat- 
isfaction or abandonment of rights. 

Tlie snHpension applies. — The time between May 20th, 1861, and January 
1st, 1870, is not to be counted in ascertaining the period necessary to have 
elapsed in order to bar an action. Johnson v. Winslow, 63 — 552 ; Howell v. 
Buie, 64 — 446 ; Plott v. W. N. C. R. R. Co., 65 — 74 ; Smith v. Rogers, 65 — 
181 ; Williams v. Williams, 70 — 189 ; Faison v. Bowden, 74 — 43 ; Edwards v. 
Jarvis, 74 — 315 ; Hawkins v. Savage, 75 — 133 ; Lippard v. Troutman. 72 — 551; 
Bruner v. Threadgill 88 — 361 ; Badger v. Daniel, 79 — 372 ; Johnson v. Parker, 

79—475. 

To prevent an action abating by the death of either parly. Morris v. Avery, 
Phil., 238. 

To giv* widows further lime for dissenting. Hinton v. Hinton, Phil. 410. 

To the presumption of a grant by twenty years' possession of an easement. 
Benbow v. Robbins, 71 — 338. 

To the presumption of title from seven years' adverse possession of land 
under color. Melvin v. Waddell, 75 — 361 ; Kitchen v. Wilson, 80 — 191 ; 
Johnson v. Parker, 79 — 475 ; Logan v. Fitzgerald, 87 — 30S. 

Tlie suspension of tlie statute does not apply— To actions on contracts 
where the contract was made since May I, 1865. This doctrine is intimated 
in Lippard v. Troutman, 72 — 551, and decided in Edwards v. Jarvis, 74 — 315; 
Hawkins V. Savage, 75 — 133; Lane v. Richardson, 79 — 159; Pearsall v. Ke- 
nan, 79 — 472 : Austin v. Dawson, 75 — 523 ; Cannon v. Morris, 81 — 139. 

Nor to prevent judgments becoming dormant. Neeley v. Craige, Phil., 187. 

The statute of 18G9-'70, — The statute of iS69-*70 suspending the statute 
of limitations till the falling in of the reversionary estate in the land embraced 
by the homestead applies only where the homesiead has been actually allotted. 



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CLARK'S CODE OF CIVIL PROCEDURE. 13 

and only to judgments docketed in the county where the homestead is situate. 
McDonald v. Dickson, 85 — 248 ; Cotton v. McClenahan. 85 — 254. 

LegislfltiTQ powt»r. — The legislature can repeal the effect of the statute of 
limitations before it operates, and probably even after. Pearsall v. Kenan, 79 
— 472. Compare Taylor v. Harrison, 2 Dev., 374, and Phillips v. Cameron, 3 
Jones, 390. 

Sec. 138. reriod of Hmitation—oi^ection mu$% he taken by 
ansiver. C. C. P., ». 17 • 

Civil actions can only be commenced within the periods 
prescribed in this title, after the cause of action shall have 
accrued, except where in special cases a different limitation 
is prescribed by statute. But the objection that the action 
was not commenced within the time limited, can only be 
taken by answer. 

Oldectlon must be taken bj answer.—P^jam v, Stoltz, 67—144 ; Priveti 
V. Calloway, 75—233 ; Green v. N. C. R. R. Co., 73 — 524 ; Kahnweiler v. An- 
derson, 78 — 133 ; Long V. Bank 81 —41. 

Objection cannot be taken by demurrer* — The statute of limitations must 
be pleaded as a defence in the answer, and can not be set up by demurrer. Basoil 
V. Berry, 85 — 124. 

Nor by motion to dismiss or TOCate. — The defence of the statute of limi- 
tations must be set up in the answer, and can not be assigned as reason for a 
motion to dismiss. Lynn v. Lowe, 88 — 478. 

Nor can it be set up by a motion to vacate and set aside an execution. Wil- 
liams V. Mullis, 87 — 159. 

If not relied on in the lower coart. — If the plea of the statute is not re- 
lied on in the trial before a justice, it can not be set up on appeal in the superior 
court without leave. Permission to do so is a matter of discretion with the 
judge. Poston v. Rose, 87 — 279. 

Defendant will not be allowed to plead it, when.— A defendant will, 

not be allowed to plead the statute of limitations when the action has been de* 
layed at his request. Daniel v. Com'rs of Edgecombe, 74 — 494 ; Haymore v. 
Com'rs, 85 — 268. 

Creditor*!* bill. — In an action in the nature of a creditor's bill, every credi- 
tor may plead the statute against the claim of every other. Woodsworth v. 
Davis, 75 — 159. 

Mast be proTen* — When the objection that the action has not been com* 
menced within the time limited is taken, it must be proved, if not apparent from 
the complaint, by the party seeking advantage from it. Lewis v. Latham, 
74 — 283 ; Strauss v. Crawford. 89 — 

When it need not be setnp in answer. — Where defendant claims under 
a grant from the state, the thirty years* possession can be given in evidence 
without pleading the statute of limitations. Freeman v. Sprague, 82 — 366. 

The statute of presnniptions need not to be pleaded.— It is sufficient if 
the facts appear in the answer from which the presumption will arise. Craw* 
ford V. McLellan, 87 — 169. 

On rnnning: accounts. — Where there is a running account all on one side, 
the statute of limitations runs on each item from its date. Where there are 
mutual accounts, the statute runs only from the last dealing between the parties. 
Robertson v. Pickrell, 77 — 302. 



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CLARK'S CODE OF CIVIL PROCEDURE- 



CHAPTER TWO. 

ACTIOirS FOB THE BEOOVERY OF BEAL FBOF- 
EBTY-TIME OF COMMENCING. 



Section. 

139. When the state wOl not sue. 

140. Such possession valid against 

claimants under the state. 

141. When person having title 

must sue. 

142. Proviso, in case of judgment 

for plaintiff reversed, &c. 

143. Seizin within twenty years, 

when necessary. 

144. When adverse possession for 

twenty years. 



Section. 

145. Action after entry. 

146. Possession presumed ; occu- 

pation, when deemed un- 
der legal title. 

147. Relation of landlord and 

tenant. 

148. Persons under disabilities. 

149. Cumulative disabilities. 

150. Railroads, &c., not barred. 



Sec. 139* When the staite wiU not sue, thirty years* posses-^ 
Hon. C. C jP., s. 18. 

The state will not sue any person for, or in respect of, 
any real property, or the issues or profits thereof, by reason 
of the right or title of the state to the same : 

(1) When the person in possession thereof, or those under 
whom he claims, shall have been in the adverse possession 
thereof for thirty years, such possession having been ascer- 
tained and identified under known and visible lines or 
boundaries, shall give a title in fee to the possessor. 

Nature of possession requisite.— Discussed. Logan V. Fitzgerald, 87— -308. 

What adverse possession is sufficient* — If there has been an adverse pos- 
session for any time Uss than thirty years, it is not a circumstance to eo to the 
jury from which alone, or with other circumstances, to infer thirty years adverse 
possession. Melvin v. Waddell, 75 — 361. 

In proving title out of the state, the plaintiff may avail himself of possession 
by any others though he fail to connect himself with them. Ibid. 

Where a widow puts a son-in-law in possession of land belonging to the estate 
of her deceased husband, and he sells and makes title in fee, having none him- 
self, neither his possession nor that of those claiming under him is adverse to the 
heirs of the husband, or those claiming title under them. Ibid. 

Where a party ran a fence across the neck of a peninsula, partly on his own 
land and partly on another's, and opened a gap on his own land so as to allow 
his own cattle to go on the peninsula and exclude others unless they crossed the 
liver, this is not an adverse possession, unless the fence was made with the avowed 
purpose of taking possession of the peninsula. Osborne v. Johnson, 65 — 22. 

Adverse possession ninsi be con tinnous*— Adverse possession must be 
continuous. A gap, occurring even during the period the statute was suspended, 
will destroy its continuity. The possession must be actual, open and visible and 



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CLARK'S CODE OF CIVIL PROCEDURE. 1$ 

not sin assertion of a mere claim, as, for instance, by the payment of taxes. Ma^ 
loy V. Bruden, 86 — 251. 

Defendant need not plead the thirty years* p^ossesslon,— Where the de- 

fendant claims under a grant from the state, his thirty years' possession can be 

fiven in evidence without pleading the statute of limitations. Freeman ▼, 
prague, 82 — 366. 

No privity amon^ Baccesslve tenants necessary.—From an adverse 
possession of land for thirty years, the law presumes a grant from the st^te> and 
It is not even necessary that there should be privity or connection among the 
successive tenants. — Davis v. Mc Arthur, 78 — 357. 

Twenty-one years^ possession under coloraMe title. 

(2) When the person in possession thereof, or those under 
whom he claims, shall have been iu possession under col- 
orable title for twenty-one years, such possession having 
been ascertained and identified under known and visible 
lines or boundaries. 

See M alloy V. Bruden, under preceding sub-section. 

As to what constitutes possession^ see also Tredwell v. Reddick, 1 Ired., 
56 ; Flanniken v. Lee, i Ired., 293 ; Williams v. Buchanan, i Ired., 535 ; By- 
num v. Thompson, 3 Ired., 578; Bynum v. Carter, 4 Ired., 310; Lenoir v. 
South, 10 Ired., 237 ; Berryman v. Kelly, 13 Ired., 269 ; Morris v. Hayes, 2 
Jones, 93 ; Blackstock v. Cole, 6 Jones, 560 ; Ring v. King, 4 D. & B., 164. 

As to what constitat^s adverse possession, see, also, Murray v. Shanklin, 
4D. &B., 289; Montgomery v, Wynns, 4 D. & B., 527; Gilchrist v. Mc- 
Laughlin, 7 Ired., 310; Powell v. Felton, 11 Ired., 469; Loftin v, Cobb, i 
Jones, 406 ; Smith v. Reid, 6 Jones, 494 ; Everett v. Dockery, 7 Jones, 390 ; 
Ring V. King, 4 D. & B., 164 ; Parker v. Banks, 79 — 480. 

As to conflicting possession under different grants or lappage, see Williams 
V. Buchanan, i Ired., 535 ; Williams v. Miller, 7 Ired., 186 ; Bryson v. Slagle, 
Busb., 449; Brown v. Potter, Busb., 461 ; Baker v. McDonald, 2 Jones, 244; 
McCormick v. Monroe, 3 Jones, 332 ; Williams v. Wallace, 78--354 ; Kitchen 
V. Wilson, 80 — 191 ; McAllister v. Devane, 76 — 57. 

As to what constitutes *^ colorable titie,** see also Grant v. Winbume, 
2 Hay., 56 ; Armour v. White, ibid, 69 ; Pierce v. Owens, ibid, 234 ; Evans v, 
Satterfield, 1 Mur., 413; University v. Blount, T. R., 13; Hill v. Wilton, s 
Mur., 14; Jones V. Putney, 3 Mur., 562; Campbell v. McArthur, 2 Hawks, 
33; Rayner v. Capehart, 2 Hawks, 375 ; Tate v. Southard, 3 Hawks, 119; 
Dobson V. Murphy, i D. & B., 586 ; Ross v. Durham, 4 D. & B., 54 ; Williams 
v. Council, 4 Jones, 206 ; Hardin v. Barrett, 6 Jones, 159 ; Cron v. Hinson, 8 
Jones, 347 

Sec. 140. Such possession valid against claitnants under 
the state. C. C. P., s. 19. 

All such possession as is described in the preceding sec* 
tion, under such title as is therein described, is hereby rati- 
fied and confirmed, and declared to be a good and legal bar 
against the entry or suit of any person, under the right or 
claim of the state. 



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See* 14:1. Seven years^ possession under colortMe tiUe^^ 
when persons having titie tnuU site. C. C* -P., s* 20. 

When the person in possession of any real property, or 
those under whom he claims, shall have been possessed of 
the same, under known and visible lines and boundaries, 
and under colorable title for seven years, no entry shall be 
made or action sustained against such possessor by any per- 
son having any right or title to the same, except during 
the seven years next after his right or title shall have de- 
scended or accrued, who in default of suing within the time 
aforesaid, shall be excluded from any claim thereafter to be 
made; and such possession, so held, shall be a perpetual 
bar against all persons, subject to the qualifications in sec- 
tions 148. 149, 150. 

What possession will protect. — Seven years' exclusive adverse possession of 
land under color of title will protect the occupant against the claim of the true 
owner. Davis v. McArthur, 78 — 357 ; Johnson v. Parker, 79 — 475 ; unless 
such owner be under some disability, and in that event, his right must be as- 
serted within three years from the removal of the disability. Johnson v. Parker^ 

79—475- 

Building a shed, quarrying rock and cutting wood to bum lime, on the prem- 
ises for more than seven years, uninterruptedly, constitutes an adverse posses- 
sion, which will give title to one claiming under it. Moore v. Thompson, 69 — 
120. 

The possession for seven years under color of title must be continuous, unin- 
terrupted and manifested by distinct and unequivocal acts of ownership to bar 
the entry of the real owner. Gudger v. Hensley, 82 — 481. 

Nature of possession required. — The nature of the possession necessary 
under this section commented on. Malloy v. Bruden, 86 — 251 ; Logan v. Fitz- 
gerald, 87 — 308 ; Gudger v. Hensley, 82—481. 

A purchaser of land who has been in the continuous adverse ]X)ssession under 
a deed for the same for more than seven years before suit brought (and after 
cause of action accrued) to have such purchaser declared a trustee for plaintifTs 
benefit is protected by this section, and the fact that an ejectment was brought 
within the time is no defence to the plea of the statute. The two actions are 
not for the same cause. Isler v. Dewey, 84 — 345. 

Where title is shown out of the state by thirty years' possession the plaintiff 
need not show seven years' adverse possession in addition to the thirty years to 
entitle him to recover. The lapse of the seven years* adverse possession concur- 
rently with the thirty years is sufficient. Hill v. Overton, 81 — 393. 

Not snfllcieilt as possession* — Occasional entries at long intervals few seven 
years under color of title for the purpose of making brick, cutting timber, &c., 
will not entitle a plaintiff to recover land under this section. The possession 
must be continuous and actual, not constructive. Williams v. Wallace, 78 — 354, 

Possession by mortgagor* — The possession of the mortgagor can not be 
adverse to the mortgagee, but a purchaser for value from the mortgagor, without 
notice of the mortgagee, holding possession for seven years acquires a good title. 
Parker v. Banks, 79 — 480. 

Possession by mortolgee* — A seven years* adverse possession under a mort- 
gage deed is not color of title, but the mortgagee's actual possession of the land 



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for ten years after default raises a presumption of a release of the equity of re- 
demption, or — of a reconveyance if such possession is by the mortgagor. Ed- 
wards V. Lipton, 85 — 479. 

Possession by one tenant in common* — Thqugh a tenant in common has 
been in the sole reception of the profits for more than seven years, yet his pos- 
session can not be held as adverse to his co-tenant's without proof of actual 
ouster. Linker V. Benson, 67 — 150. 

Nothing less than a sole possession of twenty years by a co-tenant without any 
demand or claim of another co-tenant to rents, profits or possession, he being 
under no disability, will raise a presumption in law that such sole possession is 
rightful. Day v. Howard, 73—1 ; Neely v. Neely, 79 — 478 ; Covington v. 
Stewart, 77 — 148. 
. Possession by alienee of a tenant in common.— An action by one tenant 

in common for partition is barred by seven years' adverse possession by an alienee 
of the other tenant in common under a deed purporting to convey the whole 
land. Pope v. Matthis, 83 — 169. 

The seyen years' possession need not be next Immediately preceding 
SOit* — Where the plaintiff *s title to land is based upon a seven years' adverse 
possession under a colorable claim, the law does not require that such possession 
should be for the seven years next preceding the coAimencement of the action. 
Such possession (the title of the land bein^ out of the. state) will vest a title 
against all the world which can not be divested, except by a subsequent con- 
tinued adverse possession for seven years with color of title, or twenty years* ad- 
verse possession without color. Christenbury v. King, 85 — 229. 

Possession of lappage* — In the case of lapping or interfering convey- 
ances of land where neither party is in actual possession of the lappage, the law 
adjudges the possession to follow the title. Williams v. Wallace, 78 — 354 ; 
Kitchen v. Wilson, 80 — 19I. 

Constrnctive possession insnfllcient. — The possession of a lessee of a part 
of a tract of land gives the lessor constructive possession of the whole of it, but 
only the part actually in possession will be protected by the lapse of time against 
the real owner. Scott v. Elkins, 83 — 424. 

Color of title* — A will, devising real property by the name of the tract, is 
color of title if the tract, is well known by that name, and has metes and bounds 
all ascertained, visible and known. Henley v. Wilson, 83 — 405. 

A deed conveying land, which describes it as "one tract of land lying in the 
county aforesaid, adjoining lands of A and B, containing twenty acres, more or 
less," does not constitute color of title and possession under it is not adverse. 
Dickens v. Barnes, 79 — 490. 

A paper writing purporting to be a will proved before the proper tribunal in 
1810 by one witness, is color of title to lands disposed of therein. McConnell v. 
McConnell, 64 — 342. 

Persons under disability. — Seven years' adverse possession is no bar to an 
action of ejectment where the party entitled to commence the same is an infant 
at the time the title descends to him and spes within three years next after full 
age. Clayton v. Rose, 87 — 106. 

Sec. 142. Proviso f in case of Judgment for plaintiff re- 
versed, &c. C C 1*., «• 21. 

If, in any action for real property, the plaintiff be non- 
suited or judgment be given for bim, and the same be re- 
versed for error, or a verdict pass for the plaintiff, and 
judgment thereon be arrested, then in any such case the 
plaintiff may commence a new action from time to time, 
3 



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within one year after nonsuit, judgmeDt reversed or stayed 
as aforesaid, notwithstanding the time limited in the pre- 
ceding section for bringing such action may have expired, 
if the action first brought was commenced within the time 
above prescribed for bringing such actions. 

Sec. 14:3. Seizin within twenty years when necessary. ۥ 

C/* J^»f S. /C/C. 

No action for the recovery of real property, or the posses- 
sion thereof, shall be maintained, unless it appear that the 
plaintiff, or those under whom he claims, was seized or pos- 
sessed of the premises in question within twenty years be- 
fore the commencement of such action ; subject to the qual- 
ifications in section one hundred and forty-eight, one hun- 
dred and forty-nine and one hundred and fifty. 

Tenants in common* — The possession of one tenant in common for twenty 
years without any acknowledgment of title in his co-tenant, and without any 
claim on the part of his co-tenant to rents, he being under no disability, formerly 
raised a presumption of title, but now, under the Code, has the effect of an abso- 
lute title in fee against all persons not under disability. Covington v. Stewart, 
77—148. 

Nothing less than twenty years* sole possession will bar an action by a tenant 
in common against a co-tenant. Neely v. Neely, 79 — 478. 

A tenant in common in the possession and sole enjoyment of the common 
property is not protected by the statute of limitations from accounting with his 
co-tenants for rents and profits. The statute begins only from a demand andre^ 
fusal to account. Jolly v. Bryan, 86 — 457. 

Sec. 144. When adverse possession far twenty years. C. C. 
r.,s.23. 

No action for the recovery of real property, or the pos- 
session thereof, or the issues and profits thereof, shall be 
maintained when the person in possession thereof, or the 
defendant in such action, or those under whom he claims, 
shall have possessed such real property under known and 
visible lines and boundaries adversely to all other persons 
for twenty years ; and such possession so held, shall give a 
title in fee to the possessor, in such property, against all per- 
sons not under disability. 

Sufficient possession. — The clearing and fencing to a line of marked trees 
constitutes a notorious adverse possession, though the intention was to clear only 
to the real line between two grants, which line was not identical with such 
marked line. Mode v. Long, 64 — 433. 

Insufficient possession. — When one in possession of land conveys the same 



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CLARK S CODE OF CIVIL PROCEDURE. 1 9 

in trust to pay debts, and afterwards it is sold at execution sale and bid in for 
the benefit of his wife, and he continues in possession during his life, and thd 
wife until action brought ; this is not a possession adverse to the trustee or to 
a purchaser at the sale under deed of trust. McNeil v. Riddle, 66 — 290; 
Covington v. Stewart, 77 — 148, cited, supra % 143 ; see M alloy v. Bruden, 
86—251, cited, supra, § 139. 

Prettnuiption of grrant. — The title being out of the state, and there being 
evidence tending to prove a possession for twenty years, by those under whom 
the plaintiff claims, the jury may presume a grant from one having title, MeU 
vin V. Waddell, 75 — 361. 

Twenty years' possession of an easement raises a presumption of a grant. 
Benbow v. Robbins, 71 — 338 ; Pearsall v. Kenan, 79 — ^472. 

Bee. 145. Action after entry. C. C. JP., 9. 24. 

No entry upon real estate shall be deemed sufficient ot 
valid, as a claim, unless an action be commenced thereupon 
within one year after the making of such entry, and within 
the time prescribed within this title. 

Sec. 146. BossesHon presumed — occupa/tion when deemed 
under legal title. C. C. JP., 8. 25. 

In every action for the recovery of real property, or the 
possession thereof, or damages for a trespass on such pos- 
i«ession, the person establishing a legal title to the premises 
shall be presumed to have been possessed thereof within the 
time required by law; and the occupation of such premises 
by any other person shall be deemed to have been under, 
and in subordination to, the legal title, unless it appears 
that such premises have been held and possessed adversely 
to such legal title, for the time prescribed by law before 
the commencement of such action. 
Possession Is presamed to be adverse. — Every possession of land by one 

other than the claimant is deemed to be adverse until proof to the contrary is 
shown. Ruffin v. Overby, 88 — 369. 

^hen no actual possession^ the constractlTe possession Is In the real 
owner* — In the absence of possession in another, he who has the legal estate 
is in construction of law in possession. Kennedy v. Wheatley, 2 Hay., 402 ; 
Dobbs V. GuUige, 4 D. & B., 68 ; London v. Bear, 84 — 266. See Malloy v. 
Bruden, § 139 ante. 

Presaniptlon of possession* — If the legal title is established in the plain- 
tiff, he is presumed to have been possessed, within the time prescribed by law, 
of the premises, unless the contrary is shown. Johnston v. Pate, 83 — no. 

Sec. 147. Metation of landlord and tenant. C. C. JP., 8. 26. 

Whenever the relation of landlord and tenant shall have 
existed between any persons, the possession of the tenant 
shall be deemed the possession of the landlord, until the expi- 



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20 CLARK'S CODE OF CIVIL PROCEDURE. 

ration of twenty years from the termination of the tenancy ; 
or where there has been no written lease, until the expira- 
tion of twenty years from the time of the last payment 
of rent, notwithstanding that such tenant may have acquired 
another title, or may have claimed to hold adversely to his 
landlord. But such presumptions shall not be made after 
the periods herein limited. 

If one who enters as a tenant remains in possession twenty years, after the 
expiration of his tenancy, without paying rent or otherwise acknowledging his 
tenancy, his possession is deemed adverse. Melvin v. Waddell. 75 — 361 ; Yates 
V. Yates, 76—142. 

See. 14:8. JPersons under disabilities. C. C. JP., s. 27* 

If a person entitled to commence any action for the re- 
covery of real property, or to make an entry or defence 
founded on the title to real property, or to rents and ser- 
vices out of the same, be, at the time such title shall de- 
scend or accrue, either, 

(1) Within the age of twenty one years, or 

(2) Insane, or 

(3) Imprisoned on a criminal charge, or in execution 
upon conviction of a criminal offence, or 

(4) A married woman ; 

Then such person may, notwithstanding the time of lim- 
itation prescribed in this title be expired, commence his 
action, or make his entry, within three years next after full 
age, coming of sound mind, enlargement out of prison, or 
discoverture ; and at no time thereafter. 

Feme Coyert* — A delay by a feme covert^ tenant in common, for three years 
after the death of her husband and seven years after the death of her father, 
who had a Ufe estate in the land, does not bar her action. Day v. Howard, 

73—1. 

See also § 178 /<7j/, which allows a married woman to sue alone in matters 
affecting her separate estate. It is held that this does not remove the disability 
of coverture when she is a defendant in actions concerning such estate. Lippard 
V. Troutman, 72 — 551. See Clayton v. Rose, 87 — 106, under § 141, anU, 

See. 14:9. Cumulative disabilities. C. C. r., s. 28. 

When two or more disabilities shall co-exist, or when one 
disability shall supervene an existing one, the period pre- 
scribed within which an action may be brought shall not 
begin to run until the termination of the latest disability. 



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21 



Where 2. feme plaintiff did not become of age until 1866, the suspension of the 
statutes of limitations saved her rights until 1870, and if she incurred the disability 
of coverture before the date last mentioned, the statute does not begin to run 
until the removal of her coverture. Lippard v. Troutraan, 72 — 551. See also 
cases cited under § 136, ante. 

Sec. 150. Ra4lroad8y Jtc, not barred. M. (X, o. 6S, s. 23^ 

No railroad, plank road, turnpike or canal company, shall 
be barred of, or presumed to have conveyed, any real estate, 
right of way, easement, leasehold, or other interest in the 
eoil which may have been condemned, or otherwise obtained 
for its use, as a right of way, depot, station-house or place 
of landing, by any statute of limitation or by occupation 
of the same by any person whatever. 



CHAPTER THREE. 



ACTIONS OTHER THAN FOR THE RECOVERT 
OF REAL PROPERTY— TIME OF COMMENC- 
ING. 





Sbction. 

151. Periods of limitation pre- 
scribed. 
153. Ten years— 

(1) Upon a judgment, &^., of 
any court of the United 
States or state; 

(2) Upon a sealed instrument; 

(3) For foreclosure of amort- 
gage, &c.; 

(4) For the redemption of a 
mortgage. 

153. Seven years — 

(1) On a Judgment of a Jus- 
tice of the peace; 

(2) Against a personal or real 
representative. 

154. Six years — 

(1) Upon the official bond of a 
public officer; 

(2) Against an executor, ad- 
n]dnistrator or guardian, on 
his bond; 

(3) For injury to any incorpo- 
real hereditament. 



Sbction. 

165. Three years — 

(1) For any contract or obliga^ 
tion not embraced in the 
preceding section; 

(2) Under liability created by 
statute, other than a pen^ 
alty, &c. ; 

(3) Tre^>as8 upon real prop- 
erty; 

(4) For converting, &o., any 
goods and chattels, or for 
their specific recovery; 

(5) Criminal conversation, or 
any other injury not arising 
under contract; 

(6) Against sureties of admin^ 
istrat<»>, &c., on official 
bond of their principal; 

(7) Against bail; 

(8) Or fees due any officer by 
judgment; 

(9) For relief on the ground of 
fraud or mistake. 



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tt CLARK'S CODE OF CIVIL PROCEDURE* 



Bbction. 

J66. One year — 
(1) Against sheriff, &c., for 
trespass under color of of- 
fice; 

' (Z) Upon a statute for a pen- 
alty or forfeiture ; 

(3) Libel, assault, battery or 
false imprisonment; 

(4) Against a sheriff or other 
officer for an escape ; 

(6) By creditor of a deceased 



Bbction. 

person against his personal 
representative. 

157. Six months — 
For slander. 

158. For other relief within ten 

years. 

16J>. Limitations to apply to a.e- 
tions by the state. 

160, Actions upon an account 
current, when cause ac- 
crues. 



iSfec. 151. JPeriods of limitation prescribed. C C -P., ». 30- 

The periods prescribed for the commeucement of actions, 
other than for the recovery of real property, shall be as fol- 
lows : 

When demand necessary. — A trustee or bailee does not hold adversely un- 
til after a demand, and until then the statute of limitations does not begin to run. 
Earp V. Richardson, 78 — 277; Earp v. Richardson, 81 — 5. 

Objection most be taken by answer.— See 138 anle and cases there dted. 

Sec. 152. Ten years^ C. C. JP., ss. 14, 31. 

Within ten years — 

(1) An action upon a judgment, or decree of any court of 
this state, or of the United States^or of any state or terri- 
tory thereof, from the date of the rendition of said judg- 
ment or decree. But no such action shall be brought more 
than once, nor have the eflfect to continue the lien of the 
original judgment. 

Judgment Hen lost. — The lien of a docketed judgment is lost by delaying 
for more than ten years to enforce it by execution. Fox v. Kline, 85 — 173. 

And this is so notwithstanding execution has issued within the ten years. Pa- 
sour V. Rhyne, 82 — 149. 

Sale under execution yold* — A sale of land under execution, issued more 
than ten years after the docketing of the judgment, is invalid, and the purchaser 
at such sale obtains no title. Lyon v. Russ, 84 — 588. 

Sale of personal ^operty yalid. An execution maybe issued after 
lapse of ten years from the docketing of the judgment, (where it has been duly 
kept alive), and a levy and sale oi personal property under it is valid. Williams 
V. MuUis, 87 159. 

Leave to sue. — When leave is obtained of the judge to bring action on a 
judgment, or if leave is refused, his decision whether ** good cause * is shown is 
conclusive. Warren v. Warren, 84 — 614; Kendall v. Briley, 86 — 56. 

A party can have execution on his judgment and at same tiifie prosecute an 
action on it by leave of the court. McDonald v. Dickson, 85—248. 

Bar to issuing^ execution.— The lapse of ten years is a complete bar, when 
pleaded, to a motion for leave to issue execution on a judgment. McDonald v. 
Dickson, 85 — 248. 



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CLARK'S CODE OF CIVIL PROCEDURE. ^3 

Jadgrmont as eoanterclalm or 8et*o#* — This section does not prevent 
«sing a judgment as a counterclaim or set-oflf. McCIenahan v. Cotten, 83—333. 

Presamption of payment* — A judgment rendered before, but docketed 
after, the adoption of the C. C. P. is subject only to a presumption of satisfac- 
tion. Johnston v. Jones, 87 — 393. 

Jod^ment on a cause of action arUin^r prior to €• €• P.— A judgment 
rendered in 1870 on a debt contracted prior to 1868 is subject to the provisions of 
this chapter, whenever such judgment becomes itself causa iiUs, McDonald ▼« 
Dickson, 85 — 248. 

Effect of partial payment. — A partial payment voluntarily made on a judg- 
ment within ten years preceding a motion for leave to issue execution thereoni 
does not remove the statutory bar. McDonald v. Dickson, 87 — 404. 

As to liomesteads* — The statute of 1869-70, suspending the statute of limit- 
ations till the falling in of the reversionary estate in the land embraced by the 
homestead, only applies where the homestead has been actually allotted and only 
to judgments docketed in the county where the homestead is situate. McDon- 
ald V. Dickson, 85 — 248; Cotten v. McCIenahan, 85 — 254. 

Justices' Judgments. — ^A justice's judgment docketed in the superior court 
becomes a judgment of that court so far as enforcing its lien is concerned. Such 
lien is in force for ten years, and execution will issue to enforce it. Broyles v. 
Young, 81 — 315 ; Cannon v. Parker, 81 — 320. 

But an action on such judgment would be barred by the lapse of seven years. 
Daniel v. Laughlin, 87 — ^433 ; Broyles v. Young, 81 — 315. 

(2) An action upon a sealed iDStrumeDt against the prin- 
cipal thereto. 

Interest. — The interest on such instrument is not barred until tb« principal X 
is, though it is agreed " to be paid annually." Knight v. Braswell, 70—709. 

Sureties. — It is competent to show by parol evidence that a joint obligor to a 
sealed instrument is in fact a surety, and that the obligee was aware of it at the 
time he accepted the instrument. Welfare v. Thompson, 83 — 276. 

Where the defendant sets up that he is a surety, and the suretyship does not 
appear from the instrument signed by him, he must prove that the creditor had 
Imowledge of the suretyship. Goodman v. Litaker, 84 — 8 ; Torrence v. Alex- 
ander, 85 — 143. 

Does not apply to bonds executed prior to C. C. P.-— The statute of lim« 
itations has no application to bonds due before the adoption of the C. C. P. 
Crawford v. McLellan, 87—169. 

Partial payment* — Payment on a bond wilhin ten years after maturity by i^ 
the assignee in bankruptcy of one of the obligors repels the ^presumption arising 
from the lapse of time. Belo v. Spach, 85 — 122. 

(3) An action for the foreclosure of a mortgage, or deed 
in trust for creditors with a power of sale, of real property, 
where the mortgagor or grantor has been in possession of 
the property, within ten years after the forfeiture of the 
mortgage, or after the power of sale 'became absolute, or 
within ten years after the last payment on the same. 

A purchaser from the mortgagor, the mortgage being registered, is not coUr^ 
able title, and seven years therefore will not bar the mortgagee. Ten years, as 
above specified, must elapse. Parker v. Banks, 70 — ^480. 

Where the answer admits that a deed for land, absolute upon its face, had been 
made, as charged in the complaint upon a parol trust, that it should be a security 



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24 CLARK'S CODE OF CIVIL PROCEDURE. 

for the pa3rment of money, and the plaintiff has all the while been in possession^ 
the lapse of ten years will not bar an action for re-conveyance upon a tender o£ 
the taoxkcy. Price v. Gaskins, Phil. Eq., 224. 

(4) An action for the redemption of a mortgage, where 
the mortgagee has been in possession, or for a residuary in- 
terest under a deed in trust for creditors, where the trustee 
or those holding under him shall have been in possession ; 
within ten years after the right of action accrued. 

A mortgagee's actual possession of the land for ten years after default raises -a 
presumption of a release of the equity of redemption, and a similar possession for 
ten years by the mortgagor will raise a presumption oi a reconveyance. Edwards 
V. Tipton, 85—479. 

8€C» 153. Seven years. C. C. JR., s. 32. 

Within seven years — 

(1) An action on a judgment rendered by a justice of the 
peace, from the date thereof. 

Docketed In the superior court. — An action on a justice's judgment is 
barred by the lapse of seven years, and neither docketing the same m the supe- 
rior court nor the death of the debtor will arrest the running of the statute. 
Daniel v. Laughlin, 87 — 433 ; Broyles v. Young, 81 — 315. 

Dormancy of Judgment. — A justice's judgment being dormant, or the 
plain tiflf's having no right to transfer it to the superior court and docket it, are 
insufficient of themselves to bar an action on it. Bacon v. Berry, 85 — 124. 

Surety to the st y.— One who signs the stay of a justice's judgment be- 
comes a party to the judgment and the limitation as to such judgment, and not 
not that applicable to the contract, applies to him. Barringer v. Allison, 78-^79, 

(2) By any creditor of a deceased person against his per- 
sonal or real representative, within seven years next after 
the qualification of the executor or administrator, and his 
making the advertisement required by law, for creditors of 
the deceased to present their claims, where no personal ser- 
vice of such notice in writing is made upon the creditor; 
and a creditor thus barred of a recovery against the repre- 
sentative of any principal debtor shall also be barred of a 
recovery against any surety to such debt. 

Personal representatire must prore lapse of time and adrertisement. 

—A personal representative who pleads this section must show that the seven 
years have expired next after his qualification, before suit brought, and that he 
has advertised according to law. Cox v. Cox, 84 — 138. 

Where administration was grranted before 1 80S.-— An action against an 
administratrix, who qualified in 1863, upon a debt due and owing by the intes> 
tate to a creditor capable of bringing suit, is barred after the lapse of seven 
years. McKeithan v. McGiU, 83 — 517. 



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CLARK'S CODE OF CIVIL PROCEDURE. 25^ 

See. 154. Six years. C. C. P., 8. 33. 

Within six years — 

(1) An action upon the oflBcial bond of any public officer. 

Part payment* — A partial payment made by a surety on an agreement with 
the county commissioners that it would relieve him from further liability will not 
stop the running of the statute. Hewlett v. Schenck, 82 — 234. 

Statute runs from breach of the bond. — Where a sheriff in a claim and 
delivery proceeding returned the property to the defendant without taking the 
bond required by law, it is a breach of the sheriff *s official bond, and the stat- 
ute of limitations begins to run from the breach and not from the termination 
of the action for claim and delivery. Hughes v. Newsom, 86 — 424. 

(2) An action against any executor, administrator, col- 
lector, or guardian, on his official bond, within six years 
after the auditing of his final accounts by the proper officer, 
and the filing of such audited account as required by law. 

For distribntire shares. — An action by the next of kin, upon the bond of 
the administrator, to recover distributive shares, is barred after six years from 
auditing the administrator's account, and this both as to the principal and surety 
on the bond. Vaughan v. Hines, 87 — ^445. 

To re-open a settlement. — Where there is no settlement with parties enti- 
tled, six years from the auditing is the limitation. But where there is a settle- 
ment had, a proceding to impeach it must be begun in three years, except where 
the party is a feme covert and under disability to sue. Briggs v. Smith, 83 — 
306. 

(3) An action for injury to any incorporeal hereditament. 

Ri^ht of way. — An action for a right of way is barred in six years. Boy- 
den v. Achenbach, 7g — -539. 

Sec. 155. Three years. C. C. P., s. 34. 

Within three years — 

(1.) An action upon a contract, obligation or liability 
arising out of a contract, express or ina plied, except those 
mentioned in the preceding sections. 

When statute begins to ran. — The statute begins to run against the pur^ 
chaser of a cAose tn action of a bankrupt, from the date of the adjudication in 
bankruptcy. Blackwell v. Claywell, 75 — 213. 

An action on a call for a balance of subscription to a railroad company's 
stock is barred by the lapse of three years from the date of the call. Western 
R. R. Co. v. Avery, 64 — 491. 

When A purchases a city bond and neglects to call for it for a considerable 
time, the statute runs against an action to recover the purchase money from the 
date of the purchase, and not from the lime of delivery. Austin v. Dawson, 
75—523. 

An action against a secret partner on account of his firm is barred by the 
lapse of three years from the last item or the date of the note of the firm, though 
his partnership was not discovered by the plaintiff until afterwards. Guano Co. 
▼. Willard, 73—521. 

Where services are rendered on an express or an implied contract that com- 

4 



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'26 CLARK'S CODE OF CIVIL PROCEDURE. 



pensation will be made by a provision in the will, which is not done, an action 
will lie on a quantum niefuit^ and the statute begins to run from the death. 
Miller v. Lash, 85 — 51. 

Where services are rendered for a series of years under no definite contract 
as to duration, mode of compensation or rate, the statute begins to run as the 
services are rendered, or at least, from the end of each year. Miller v. Lash, 

85—51. 

Where the plaintiff made a payment, the defendant promising to refund any 
excess over the amount due, and upon reference a balance was found due the 
plaintiff, the statute runs only from the finding. Moore v. Comm'rs, 87 — 209. 

Trust or agencj. — On an express trust or agency the statute only runs from 
a demand ; but on an implied or constructive trust or agency, the statute runs 
as soon as the property or money is received. Robertson v. Dunn, 87 — 191. 

Bt tween tenants in common. — The statute between tenants in common 
will run only from demand and refusal in an action against the one in posses- 
sion for rents and profits. Jolly v. Bryan, 86 — 457. 

Creditors* bilL — This statute can be pleaded by one creditor of the dece- 
dent's estate against the claims of another. Oates v. Lilly, 84 — 643. 

Rents* — Where a deed, alleged to have been executed under duress, is can- 
celled, the plaintiff can recover for rents extending back not more than three 
years before the commencement of the action. Reed v. Exum, 84 — 430. 

Sureties on sealed instmments* — A surety to a sealed instrument is pro- 
tected by the lapse of three years. Welfare v. Thompson, 83 — 276. 

Where the suretyship is known to the original payee the surely is protected 
by the lapse of three years, (if the statute is pleaded), when the bond is assigned 
after maturity, whether the assignee took with or without notice. Capell v. 
Long. 84—17. 

When the fact of suretyship does not appear upon the face of the bond, the 
surety must show that it was known to the creditor, to obtain the benefit of this 
section. Goodman v. Litaker, 84 — 8 ; Torrence v. Alexander, 85 — 143. 

Be-opening settlement of guardian.— Where the settlement of a guard- 
ian's account has been sanctioned by the court and assented to by the ward, an 
action to re-open the same, in the absence of fraud, must be brought within 
three years after the ward's majority. Timberlake v. Green, 84 — 658. 

Bonds and notes executed prior to 1868* — A note dated May, i860, is 
not affected by this provision, being excepted by §136 ante. Knight v. Bras- 
well, 70 — 709. 

Heirs at law may plead the statute.— The failure of the administrator to 
plead the statute of limitations to a debt does not estop the heirs at law from 
pleading it, in a petition to sell land to make assets. Bevers v. Park, 88 — 456. 

Fraudulent donee may plead it. — The statute of limitations may be pleaded 
by a fraudulent donee of the intestate in a petition for license to sell lands to - 
make assets. Syme v. Riddle, 88 — 463. 

Legislative power to revive barred cltAm.—Semble, that the l^lature 
has no power to revive a claim barred by the statute of limitations. Bevers v. 
Park, 88—456. 

(2) An action upon a liability created by statute, other 
than a penalty or forfeiture, unless some other time be men- 
tioned in the statute creating it. 

The statutory remedy provided for the winding up of defunct corporations 
is exclusive of all others, and must be pursued within three years, A failure 
to proceed within that period is a complete defence, not only to the corpora- 
tion but to the stockholders where they are by their charter made individually 
liable. Von Glahn v. DeRosset, 81 — 467. 



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CLARK S CODE OF CIVIL PROCEDURE. 2/ 

(3) An action for trespass upon real property. . 

A action for damages for flooding land is not barred by the lapse of three 
years, if the injury was continuous. Spil man v. Roanoke Nav. Co., 74—675. 

(4) An action for taking, detaining, converting or injur- 
ing any goods or chattels, including action for their specific 
recovery. 

Where the original summons was not served, and was not for three years foU 
lowed by appropriate successive processes, the suit can not relate back to the 
original process so as to avoid the bar of the statute of limhations, and this is 
true, though an order was made by the court to issue alias^ which was neglec- 
ted or disregarded by the clerk. Etheridge v. Woodley, 83 — 11. 

An action by an executor to recover the value of personal property which had 
been put into the hands of the husband of a distributee and converted by him 
is barred by the lapse of three years. Currie v. McNeill, 83 — 176. 

In an action for tort committed in 1867, the statute of limitations does not 
commence to run till January i, 1870. Hawkins v. Savage, 75 — 133. 

(5) An action for criminal conversation, or for any other 
injury to the person or rights of another, not arising on 
contract and not hereinafter enumerated. 

Qliere* — Docs this limitation apply to cut off evidence of ill treatment more 
than three years passed, in actions for divorce a mensa et thoro ? Smith v. 
Smith, 72— 13c,. 

(6) An action against the sureties of any executor, admin* 
istrator, collector or guardian, on the official bond of their 
principal, within three years after the breach thereof com- 
plained of. 

Closed trust or {guardian's settlement* — An action on a closed trust, or to 
re-open an account and settlement with a guardian under order of a court, and 
approved by it, must be brought within three years. Spruill v. Sanderson, 
79—466. 

Onardian* — A guardian appointed in 1841 is not himself protected by lapse 
of time against an action on his bond for an account of his trust fund ; but his 
sureties are discharged if the ward does not within three years after majority 
call upon the guardian for a settlement. Hodges v. Council, 86—181. 

Irregolaritj in l^ranting il\janction. — Mere irregularity in the granting 
of an injunction will not prevent the suspension of the statute of limitations 
during the pendency of the injunction. Walton v. Pearson, 85 — 34. 

Suit for distribatire shares. — The statute of limitations does not run in 
favor of administrators against an action of next of kin suing for distributive 
shares. Bushee v. Surles, 77 — 62. Unless the administrator has filed his 
account. Vaughan v. Hines, 87 — 445. 

(7) An action against bail, within three years after judg- 
ment against the principal, but bail may discharge himself 
by a surrender of the principal, at any time before final 
judgment against the bail. 



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28 CLARK'S CODE OF CIVIL PROCEDURE. 

(8) Fees due to any clerk, sheriflF or other oflBcer, by the 
judgment of a court, within three years from the time of 
the judgment rendered, or of the issuing of the last execu- 
tion therefor. 

(9) An action for relief, on the ground of fraud or mistake, 
in cases which heretofore were solely cognizable by courts 
of equity, the cause of action in such cases not to be deemed 
to have accrued, until the discovery by the aggrieved party 
of the facts constituting such fraud or mistake. 

From the discoyery, — An actiou lo secure the assets of a deceased debtor 
alleging their fraudulent disposition by the executor and others is only barred 
by the lapse of three years from the discovery thereof by the plaintiff. Hughes 
t. Whitaker, 84 — 640. 

Where there was fraud or mistake in the terms of a deed, an action for relief 
against it is not barred till the lapse of three years from the discovery thereof 
by the plaintiff. Day v. Day, 84 — ^408. 

From the act complained of arid not from discoyery. — This section does 

not prevent the statute running in an action for fraudulent conversion of per- 
sonal property, from the conversion, and not from the discovery. Blount v. 
Parker, 78 — 128 ; Spruill v. Sanderson, 79 — 466. 

An action to falsify a guardian's account and settlement on the ground of 
fraud newly discovered is barred by the lapse of three years from the settlement. 
Barham v. Lomax, 73 — 76. 

Counterclaim for ft*aad in sale of land in action for the purchase 
money not barred by lapse of three years. — A party entitled to rescind 

a contract for purchase of land on the ground of fraud must declare his inten- 
tion as soon as the fraud is discovered to procure a rescission, but if he should 
not do so and is sued afterwards for the purchase money he will not be barred 
by the lapse of three years from the right to deduct from the debt an amount 
sufficient to repair the consequences of such fraud. Knight v. Houghtaling, 
85-17. 

To haye purchasers declared trustees. — An action by creditors of a part- 
nership to hold the owners of the legal estate (who purchased the interest of 
one partner) as trustees for the payment of their debts is not barred by this sec- 
tion. Ross V. Henderson, 77 — 170. 

Mutual mistake. — Quere — Does the refusal of a party to correct a mutual 
mistake in the number of acres in a tract of land constitute fraud within the 
meaning of this section ? Young v. Phifer, 72 — 529. 

Payee against, drawee*. — Where a drawer withdraws a fund upon which he 
has drawn before the presentation of his draft upon it, the statute of limitations 
does not begin to run against the holder of the draft until demand upon the 
drawer. Kahnweiler v. Anderson, 78 — 133. 

Attorney and client. — Where an attorney collects money and upon a de- 
mand refuses to pay it over, the delay of the client to bring suit within three 
years after such refusal, bars him of the right to maintain an action therefor. 
Egerton v. Logan, 81 — 172. 

Feme covert. — While the general rule is that an action to re-adjust a settle- 
ment made under the jurisdiction of a court must be made in three years, there 
is an exception where the settlement is made with a feme covert. Briggs v. 
Smith, 83—306. 

Where right of action accrued prior to C. C. P.— The statute of limita- 
tion has no application to a case of fraud where the right of action accrued prior 
to August, 1868. Batts v. Winstead, 77—238. 



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CLARK'S CODE OF CIVIL PROCEDURE. 29 

Sec* IX* Ofie year. C* C P., 8. 35. 

Within one year — 

(1) An action against a sheriff, coroner or constable, or 
other public oflScer, for a trespass under color of his oflBce; 

(2) An action upon a statute, for a penalty or forfeiture, 
where the action is given to the state alone, or in whole or 
in part, to the party grieved, or to a common informer, ex- 
cept where the statute imposing it, prescribes a different lim- 
itation. 

An action against a clerk of a superior court, for the penalty of five hundred 
dollars for failure to pay over tax-fees on civil suits and fines, is barred by the 
lapse of one year. Hewlett v. Nutt, 79-^263. 

(3) An action for libel, assault, battery or false imprison* 
ment; 

(4) An action against a sheriff, or other officer, for the 
escape of a prisoner arrested or imprisoned on civil pro- 
cess; 

(6) An action by a creditor of any deceased person, on 
whom personal notice in writing, to present his claim to 
the personal representative of the deceased, has been served, 
and who has failed so to do, ^ithin one year after the ser- 
vice of such notice ; and any such creditor, barred of a re- 
covery against the personal representative of a principal 
debtor, by reason of such default, shall also be barred of a 
recovery against the surety for such debt. 

[Note. — The one year limitation upon actions for damages sustained by the 
wrongful death of a person should be included here. Bat. Rev., ch. 45, § 12 1 ; 
Code, § 1498. 

The two years* limitation upon claims against counties, cities and towns, ch. 
243, acts 1874-75, Code, § 756, also omitted here, is construed to be a statute of 
limitation. Wharton v. Com'rs, 82 — 11. 

Such statute is not applicable to debts "already ascertained and audited." 
Wharton v. Com'rs, 82 — 11. 

Debts which matured and were sued on before January I, 1877, are not gov- 
erned by this act. Hawley v. Com'rs, 82 — 22.] 

Sec. 157* Six mofiths. C. C P., 8. 30. 

Within six months — 
An action for slander. 
Sec. 158. For other relief within ten years. C. C. P., «. 37 • 

An action for relief not herein provided for must be com- 
menced within ten years after the cause of action shall have 
accrued. 



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50 CLARK S CODE OF CIVIL PROCEDURE. 

Goftrdian. — SembU, a guardian is protected against an action for an account 
of his trust fund by the lapse of ten years, counted from the arrival of age of 
each ward. Hodges v. Council, 86 — 186. 

LeaTe to issae execntlon. — The statute is a complete bar to a motion for 
leave to issue execution on a judgment rendered more than ten years previous. 
McDonald v. Dickson, 85 — 248. 

To hare a purchaser declared a trostee.—^/^'r^r.— Whether this section 

applies to an action brought by the creditors of a partnership to hold an indi- 
vidual creditor of one of the partners who received partnership land in pay- 
ment of his debt liable as a trustee? Ross v. Henderson, 77 — 170. 

DlTOrce. — Quere. — Whether this section prescribes the limitation upon evi- 
dence of iU treatment in actions for divorce a mensa et thoro ? Smith v. Smithy 
72—139- 

Where cause of action accrued prior to C. C. P.— Where the right of 

action of a cestui que trust against a trustee accrued prior to the adoption of the 
C. C. P., the case b governed by the limitation then existing, and if there was 
none, then by the principles of the court of equity applicable to such cases. 
Gibbet t v. Maultsby, 71 — 345. 

Where the right of action against an administration bond accrued prior to C. 
C. P., the statute of presumptions began to run from the time he filed his ac- 
count, and the next of kin would be barred by the lapse of ten years. Hodges 
V. Council, 86 — 181 ; Vaughan v. Hines, 87 — 445 ; Ivy v. Cox, I Dev. Eq., 58. 

Sec. 159. Liniit€Uiona to apply to fictions by the state. C» 

The limitations prescribed in this chapter shall apply to 
civil actions brought in the name of the state, or for its 
benefit, in the same manner as to actions by or for the 
benefit of private parties. 

Sec, 160. Actions upon an account current, when cause €u:^ 
cfues, C. C. P., s. 89» 

In an action brought to recover a balance due upon a 
mutual, open and current account, where there have been 
reciprocal demands between the parties, the cause of action 
shall be deemed to have accrued from the time of the latest 
item proved in the account, on either side. 

Bnnning account — Mutual* — The statute of limitations runs only from the 
date of the last item in a mutual running account where each party keeps a run- 
ning account of debits and credits, or where one, with the knowledge of the 
other, keeps it. Mauney v. Coit, 86 — 463. 

Bunniog account — ^Not mutual. — Where there is a running account, all on 
one side, the statute of limitations begins to run on each item from its date, 
Robertson v. Pickrell, 77 — 302. 



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CLARK'S CODE OF CIVIL PROCEbURE. 



3i 



CHAPTER FOUR. 



GENERAL PROVISIONS AS TO TIME OF COM- 
MENGING ACTIONS. 



Sections. 

161. When action deemed com- 

menced. 

162. Time for commencement of 

action, or enforcement of 
judgment against defend- 
ant oat of the state. 

163. Exceptions, persons under 

disabilities. 

164. Death of a person entitled 

before limitation expires; 
action on claims filed by 
administrator, &c., and 
admitted, not barred, &c., 
applicable to claims al- 
ready filed. 

165. Actions by aliens, time of 

war not counted. 

166. When judgment reversed, 

&c., plaintiff may com- 
mence new fiction. 

167. Time of stay by injunction, 

&c., not counted. 

168. Time during controversy 

about probate of will, &., 
not counted. 



Sections. 

169. Disability must exist when 

the right of action aoi- 
crued. 

170. Where several disabilities, 

all must be removed. 

171. Acknowledgment by part- 

ner, &«., after dissolution. 

172. Acknowledgment or new 

promise must be in writ- 
mg. 

173. Co-tenants; when some barr- 

ed, others not. 

174. Title not to affect action to 

enforce payment of bills, 
&c. 

175. Nor actions against direc- 

tors, &c., of moneyed cor- 
porations, or banking as- 
sociations; limitations in 
such cases prescribed. 

176. Certain suits against banks 

barred. 



Sec. 101. When action deemed commenced. C. C P., «. 40* 

An action is commenced as to each defeDdant when the 
summons is issued against him. 

In order to bar the statute of limitations by issuing summons, the successive 
summonses (if not served) must be issued without omission, else they will only 
relate back to the first summons after the break, and this though there was an 
order of the court, but not obeyed, for an aUas at the time of the break. Eth» 
eridge V. Woodley, 83 — 11. 

Sec. 162. Time for commencem^ent of action, or enforce^ 
ment of jitdginent against defendant out of the state* 
C. C. r., 8. 41. 1881, c. 258, 88. 1, 2. 

If, when the cause of action accrue or judgment be rend«> 
ered or docketed against any person, he shall be out of the 
state, such action may be commenced, or judgment en- 
forced, within the time herein respectively limited, after the 



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$2 cxark's code of civil procedure. 

return of such person into this state, and if, after such cause 
of action shall have accrued or judgment rendered or dock- 
eted, such person shall depart from and reside out of this 
state, or remain continuously absent therefrom for the space 
of one year or more, the time of his absence shall not be 
deemed or taken as any part of the time limited for the 
commencement of such action, or the enforcement of such 
judgment. 

This section shall apply to all actions that have accrued 
and judgments rendered, transferred or docketed since the 
24th day of August, 1868. 

This section does not apply to causes of action existing before the adoption 
of the C. C. P. in 1868. Blue v. Gilchrist, 84 — 239 ; Campbell v. Brown^ 
86—376. 

Sec, 1680 Exceptions, persons under disabilities, C. C. P.^ 
s. 142. 

If a person entitled to bring an action mentioned in the 

last chapter, except for a penalty or forfeiture, or against a 

sheriff or other oflScer for an escape, be at the time the 

cause of action accrued, either — 

(1) Within the age of twenty-one years ; or 

(2) Insane ; or 

(3) Imprisoned on a criminal charge, or in execution un- 
der the sentence of a criminal court for a term less than his 
natural life ; or 

(4) A married woman ; 

Then such person may bring his action within the times 
before limited, after the disability shall be removed. 

Feme COrert. — The provision of the C. C. p., which allows a /fm^ covert 
to sue or be sued concerning her personal property, does not remove the disa- 
bility of coverture so as to allow the statute of limitations to h^x 9^ feme coverf s 
right of action. Lippard v, Troutman, 72 — 55; Smith v.- Briggs, 83 — 306. See 
also sees. 148 and 149 ante. 

Where the land of a feme covert has been conveyed without her privy exami- 
nation, there b no adverse possession against her issue, notwithstanding she pre- 
deceased her husband, until after the death of her husband. Kincaid v. Per- 
kins, 63 — 282. 

See. 164:. Death of a person entitled before limitatiofi ear^ 
jHres; action on claims filed by administrator^ d-c.^anti 
adfnitt^d, not barred, <Cy*., applicable to claims already 
filed. C. C. P., s. 43. 1881, c. 80. 

If a person entitled to bring an action die before the ex- 



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CLARK'S CODE OF CIVIL PROCEDURE. 33 

piration of the time limited for the commencement thereof, 
and the cause of action survive, an action may be com- 
menced by his representatives after the expiration of that 
time, and within one year from his death. If a person 
against whom an action may be brought die before the ex- 
piration of the time limited for the commencement thereof, 
and the cause of action survive, an action may be com- 
menced against his personal representative after the expira- 
tion of that time, and within one year after the issuing of 
letters testamentary or of administration. But if the claim 
upon which such cause of action is based be filed with the 
personal representative within the time above specified, and 
the same shall be admitted by him, it shall not be necessary 
to bring an action upon such claim to prevent the bar : 
Provided^ that no action shall be brought against the per- 
sonal representative upon such claim after his final settle- 
ment ; and this shall apply to claims already filed. 

Only applies where the defendant dies. — The provisions of this section 
apply only to an action where the plaintiff or defendant dies before the expi- 
ration of the limited time. Vaughan v. Hines, 87 — 445. 

Where Judgment debtor dies. — Where a judgment debtor dies within ten 
years after the rendition of the judgment, an action can be brought after the 
lapse of ten years upon the judgment, against the personal representative, if 
within one year after the grant of administration. Mauney v. Holmes, 87 — 428. 

A justice's judgment, though docketed in the superior court, being barred, as 
a causa litis by the lapse of seven years, the death of the debtor after the lapse 
of seven years (but before the lapse of ten years) does not give the plaintiff the 
right to sue on the judgment under the provisions of this section within one 
year after the grant of administration. Daniel v. Laughlin, 87 — 433. 

Ho admission by administrator.— Where the plaintiff told the administra- 
tor several times that the deceased owed him, but the administrator never said 
whether he would pay it or not, this is not an admission which prevents the 
statute from running. Fleming v. Fleming, 85 — 127. 

Action for money reeeiyed by deceased within three years prior to 
death. — An action for money had and received can be maintained where 
it was received bv the intestate within three years of her death and the action 
was brought within one year after the grant of administration upon her estate. 
Robertson v. Dunn, 87 — 191. 

Where cause of action accrued prior to €. C. P.— This section does not 
apply where the cause of action accrued before the adoption of C. C. P. Hall 
▼. Gibbs. 87—4. 

Sec. 165. Actions by aliens, time of war not counted. C. C. 

jL.f S. uLm.. 

When a person shall be an alien, subject or citizen of a 
country at war with the United States, the time of the con* 
4 



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34 CLARK S CODE OF CIVIL PROCEDURE. 

tiDuance of the war shall not be part of the period limited 

for the comncieDcement of the action. 

8ec» 166, IVh en judgment reversed, <^c., plaintiff may com^ 
mence new action. C. €• P., «. 45* 

If an action shall be commenced within the time pre- 
scribed therefor, and the plaintiff be nonsuited, or a judg- 
ment therein be reversed on appeal, or be arrested, the 
plaintiff, or if he die and the cause of action survive, his 
heir or representative, may commence a new action within 
one year after such non-suit, reversal or arrest of judgment. 

Jadgment dismissing an action* — A judgment dismissing an action has 
the same legal effect as a non-sait, and a new action may be brought in one year 
thereafter, the bar ol the statute not running during that lime. Straus v. 
Beardsley, 79 — 59 ; Wharton v. Comm*rs, 82 — 11. Compare, also, Skilling- 
tonv. Allison, 2 Hawks, 347 ; Morrison v, Connelley, 2 Dev., 233; Long v. 
Orrell, 13 Ire., 123, and Freshwater v. Baker, 7 Jon., 255. 

Action defeated for defectof parties*— Where one partner brings suit in 
his own name on a partnership claim, and is defeated for non-joinder of other 
partners, he may brmg another suit on the same cause in the name of the firm 
within a year, though the latter suit would have been barred by the statute 
if it had been the beginning of the litigation. Martin v. Young, 85 — 156. 
See sec. 142 anfe as to actions for realty. 

Sec. 167 • Tifne of stay by injunctioti, ^c.^ not counted. C. 
c. r., s. 46. 

When the commencement of an action shall be stayed by 
injunction or statutory prohibition, the time of the contin- 
uance of the injunction or prohibition shall not be part of 
the time limited for the commencement of the action. 

Mere irregularity in the granting of an injunction will not prevent the sus- 
pension of the statute of limitations during the pendency of the injunction. 
Walton V. Pearson, 85 — 34. 

Sec. 168. Time during controversy about probtUe of uHU, 
Sc, not counted. C. C. P., s. 47* 

In reckoning time, when pleaded as a bar to actions, that 
period shall not be counted which elapses during any con- 
troversy on the probate of a will or granting letters of ad- 
ministration, unless there be an administrator appointed 
during the pendency of the action, and it be provided that 
an action may be brought against him. 

Sec. 169. IHsability ^nust exist wlien the right of actioti ac^ 
crued, C. C. P., s. 48. 

No person shall avail himself of a disability, unless it ex- 
isted when his right of action accrued. 



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CLARK'S CODE OF CIVIL PROCEDURE. 35 

Sec, 170. Wliere several disabilities^ aU must he removed* 
C.C.r.fS. 49. 

WUere two or more disabilities shall co-exist at the time 

the right of action accrues, the limitation shall not attach 

until they all be removed. 

See sec. 149 ante. 
Sec. 171* Acknowledgment hy partner^ <0c,, after dissolu^ 
tion. C. C. P.f s. 50. 

No act, admission or acknowledgment by any partner 
after the dissolution of the copartnership, or by any of the 
makers of a promissory note or bond after the statute of 
limitation shall have barred the same, shall be received as 
evidence to repel the statute, except against the partner or 
maker of the promissory note or bond, doing the act or 
. making the admission or acknowledgment. 

Allowance of set-off* — An allowance and entry of set-o£f. made on the bond 
by the obligee without the privity of the obligor, will not remove the bar of the 
statute. Woodhousev. Simmons, 73 — 30. 

Judgment against one of seyeral obligors.— A judgment suffered by cne 
of several obligors is not an acknowledgn-.»n» binding on the other obligors. 
Lane v. Richardson, 79 — 159. 

Partial payment by principal* — A partial payment by the principal before 
maturity stops the runnmg of the statute as to the sureties also. Green v. 
Greensboro, 83 — 449. 

Where eanse of action accrued prior to C €• P.— Where the cause of 
action accrued prior to C. C. P. this section does not apply. Woodhouse v. 
Simmons, 73 — 30 ; Lane v. Richardson, 79 — 159. 

Sec. 172. Acknowledgment or new prom,ise m,ust be in 
writing. C. C. P., s. SI. 

No acknowledgment or promise shall be received as evi- 
dence of a new or continuing contract, whereby to take the 
case oat of the operation of this title, unless the same be 
contained in some writing signed by the party to be charged 
thereby ; but this section shall not alter the effect of any 
payment of principal or interest. 

Does not apply to Judgments* — A promise in writing or an actual payment 
win not repel the statute of limitations as to a judgment, it not being a contract. 
McDonald v. Dickson, 87 — 404. 

Partial payment* — The burden of proof is upon the plaintiff to show that 
it was made within such a period that the time elapsed thereafter had not barred 
the action when suit was brought. Riggs v. Roberts, 85 — 151. 

When partial payment does not reTire the liability.—The presumption 
of a recognition of the debt arising from a partial pajrment can be rebutted by 
the attending circumstances or other sufficient evidence of a contrary intent. 
Hewlett V. Nutt, 82—234. 



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36 CLARK'S CODE OF CIVIL PROCEDURE. 

Partial payment by assignee in bankruptcy.— Where the cause of action 

accrued prior to the adoption of C. C. P., a payment on a bond within ten 
years after it falls due by the assignee in bankruptcy of one of the obligors, repels 
the presumption arising from the lapse of time as to all the obligors. Belo v. 
Spach, 85 — 122. 

Partial payment by the principal.— A payment by the principal before 
maturity bars the running of the statute as to the sureties also. Green v. Greens- 
boro, 83 — 449. 

Promise by an adniini8trat4)r. — The promise of an administrator to p*y a 
debt of his intestate, which is barred by the statute, is invalid unless in writing 
and signed. Fleming v. Fleming, 85 — 127. 

Promise by one of seyeral Joint obligors.— The promise to pay a bond, 

made by one of the joint obligors, will not bind the other or deprive him of 
the benefit of the presumption of payment from the lapse of time. Campbell 
v. Brown, 86 — 376. 

Jadgment sniTered by one of seyeral obligors.- A judgment suffered by 
a joint obligor is not a waiver of the statute as to his co-obligor. Lane v. Rich- 
ardson, 79—^159. 

The new promise most be distinct and specific. — A mere acknowledg- 
ment of a debt, though implying a promise to pay, will not revive it. Riggs v. 
Roberts, 85 — 151 ; Faison v. Bowden, 76 — 425. 

Aji unaccepted offer. — An unaccepted offer to discharge the bond by a con- 
veyance of land is not such a recognition of an existing liability as will imply 
a promise to pay the debt. Riggs v. Roberts, 85 — 151. 

New promise must be in writing. — Where the cause of action accrued 
prior to the Code, the new promise, if made to any other than original creditor, 
if made since the C. C. P., must be in writing. Fleming v. Staton, 74 — 203 ; 
Pool V. Bledsoe, 85 — i. 

New promise need not be in writing. — Where the cause of action accrued 
prior to the C. C. P., the new promise need not be in writing. Faison v. Bow- 
den. 74—43- 

Promise to pay a debt discharged in bankruptcy.— The verbal promise 
of a bankrupt after his discharge to pay a note executed before the adjudica- 
tion of bankruptcy, is binding. Homthal v. McRae, 67 — 21 ; Fraley v. Kelly, 
67 — 78 ; Henly v. Lanier, 75 — 172 ; Fraley v. Kelly, 79 — 348 ; Kull v. Farmer. 
78—339- 

New promise to an agent of the creditor.~A promise to pay a debt dis- 
charged in bankruptcy, made to an agent of the creditor, is a promise to the 
creditor himself. Shaw v. Burney, 86 — -331. 

New promise to a stranger. — An acknowledgpnent or promise to a stran- 
;er, one having no privity or community with the creditor, has no validity, 
'aison v. Bowden. 76 — 425 ; Parker v. Shuford, 76 — 219. 

New promise to the attorney of the creditor.— A promise made to the at- 
torney of the creditor is sufficient. Kirby v. Mills, 78 — 124. 

Endorsement of credits. — Where credits endorsed on a bond are relied on 
to take the case out of the statute, the plaintiff must establish that they were 
put there at the dates specified, and this is so, though the credits are admitted 
lo be in the handwriting of the obligee. Grant v. Burgwyn, 84 — 560. 

Where credits endorsed on a bond are relied on to repel the presumption of 
payment, the plaintiff must establish by proof aliunde the entry of payment that 
the same was made before the presumption arose. — White v. Beaman, 85 — 3, 

Prior to C. C. P. — Where the cause of action accrued prior to C. C. P., this 
section will not apply, but the statutes previously in force. Simonton v. Clark, 
65—525. 



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CLARKE'S CODE OF CIVIL PROCEDURE. 37 

Sec. 17 3* Co-tenants, tvhen smne barred^ others not. ۥ C. 
jP. s.62. 

In actions by tenants in common or joint tenants of per* 
donal property to recover the sacae, or damages for the de- 
tention of or injury thereto, and any of tliem^hall be barred 
of their recovery by limitation of time, the rights of the oth- 
ers shall not be aflFected thereby ; but they may recover ac- 
cording to their right and interest, notwithstanding such 
bar. 

Ser, 174. Title nmt to affect action to enforce payment of 
bUls, <2c. C. C. P., sec. 53. 1874''5, c. 170. 

This title shall not affect actions to enforce the payment 
of bills, notes or other evidences of debt, issued or put in 
circulation as money by moneyed corporations incorporated 
under the laws of the state. 

Sec. 175. Nor actions against directors, d^c, of moneyed 
corporations or banking associations, lintitations in such 
cases prescribed. C. C. T., s. 54. 

This title shall not affect actions against directors or stock- 
holders of any moneyed corporation or banking association 
incorporated under the laws of this state, to recover a pen- 
alty or forfeiture imposed, or to enforce a liability created 
bylaw; but such actions must be brought within three 
years after the discovery by the aggrieved party, of the facts 
upon which the penalty or forfeiture attached, or the lia- 
bility was created. 

Sec. 170. Certain suits against banks barred. C. C. P., s^ 
54 (a), 1872, c. 120. 

Whereas, many citizens of the state of North Carolina 
were stockholders in banking institutions chartered in 
other states before the year one thousand eight hundred and 
sixty-one, which contain individual liability clauses in the 
nature of penalties, in the event of failure on the part of 
said banking corporations to meet their liabilities; and 

Whereas, said banking corporations have become insol* 
vent by the results of the late war, thereby entailing upon 
the stockholders the loss of the investment of their capital 



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1% CLARK'S CODE OF OVIL PROCEDURE. 

therein, and tbey are threatened with farther loss by reason 
of said individual liability clauses; therefore, 

All such causes of action as have not hitherto been com- 
menced in this state against citizens thereof, are hereby de 
dared to be barred by lapse of time. 



TITLE IV. 
PARTIES TO CIVIL ACTIONS* 



Section. 

182. Guardian ad litem to file 

answer. 

183. Who to be plaintifEs. 

184. Who to be defendants. 

185. Parties to be joined. 

186. Parties to bills and notes, 

187. Joint contiacts of co-part- 

ners. 

188. Actions, when not to abate. 

189. Court may determine con- 

troversy and interpleader. 



fiBCTIOBT, 

177. Action to be by i)arty in in* 
test; action by grantee of 
land held adversely; as- 
signment of thing in ac- 
tion. 

178. Action by and against a 
married woman. 

179. Action by exeoutor, trustee, 
&c. 

180. Infants to sue by guardian 
or next friend. 

181. Infants, &c., to defend by 
guardian ad litem. 

Sec. 1760 Action to be by party in interest ; fiction by 
grantee of land held adversely ; assignment of thing in 
action. ۥ C. B., 8. 65. 1874-^5, c. 256, s. 1. 

Every action must be prosecuted in the name of the real 
party in interest, except as otherwise provided; but this sec- 
X . . ^y tion shall not be deemed to authorize the assignment of a 

) ' thing in action not arising out of coi. tract. But an action 

may be maintained by a grantee of real estate in his own 
namCi whenever he or any grantor or other person through 
whom he may derive title, might maintain such action, 
notwithstanding the grant of such grantor or other convey* 
pxxQQ be void, by reason of the actual possession of c^ person 
claiming under a title adverse to that of such grantor, or 
other person, at the tiipe of the delivery of such grant or 
other conveyance. In the case of an assignment of a thing 
in action the action by the assignee shall be without preju* 
dice to any set-off or other defence existing at the time of. 



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Clark's code of civil procedure. 39 

or before notice of, the assignment; but this section shall 
not apply to a negotiable promissory note or bill of ex* 
change, transferred in good faith and upon good consider* 
ation, ^before due. 

AeUon by a citisei representing a class.— A citixen of a township repre^ 
senting a class may bring an action to test the validity of a township election, 
and other citizens may be allowed to come in and defend such action. Perry v. 
Whitaker, 71 — ^447. 

Suite apoil official l>ond8« — This section does not dispense with the require* 
ment that suits upon official bonds made payable to the state must be brought 
in the name of the state. Carmichael v. Moore, 88 — 29. 

The commissioners of a county are proper relators to sue upon the official bond 
of a county treasurer to recover the county school fund, Comm'rs v. Magnin, 
S6 — 285; Comm'rs V. Magnin, 78 — 181. 

Action agrainst superior court clerk. — The county treasurer is the proper 
plaintiff in an action on the bond of the superior court clerk to recover money 
collected by him as taxes on suits. Hewlett v. Nutt, 79 — 263. 

Relator in an action upon a ipiardiau l>ond.— A creditor of a guardian is 
not the proper relator in an action upon the guardian bond. — McKinnon v. 
McKinnon, 81 — 201 

Suit on note payable to guardian ^^as guardian.^— The administrator of 
a guardian cannot sue on a note payable to the guardian " as guardian,*' unless 
on a settlement the note has become the property of his intestate. Alexander 
V. Winston, 81 — 191. 

Administrator of deceased guardian. — The administrator of a deceased 
guardian cannot maintain a suit on the bond of a clerk and master for a sum due 
the ward of such deceased guardian. Davis v. Fox, 69 — 435. 

SurriTOr of Joint guardians.— The survivor of joint guardians may sue oii 
a note payable to both, and at his death the action may be continued by his rep- 
sentative, as the trustee of an express trust. Biggs v. Williams, 66 — ^427. 

Administrator de bonis tion* — An administrator dg bonis non may sue 
in his own name on a bond which he had passed without endorsement to a dis- 
tributee of the estate of his intestate, Setzer v. Lewis, 69 — 133. 

An administrator de bonis non c. t, a. is the representative of the testator and 
the proper party plaintiff in an action to recover the assets of the estate. Grant 
V. Bell, 87—34. 

Tenant by the courtesy. — A tenant by the courtesy initiate is the real party 
in interest in an action for the recovery of possession of the wife's land ana may 
sue without joining her as a party plaintiff. Wilson v, Arentz, 70— -670. 

Trustees. — A trustee may sue in his own name or he may join his cestui que 
trust, Rankin v. Allison, 64 — 673 ; Biggs v. Williams, 66-— 427; Mebane v. 
Mebane, 66 — 334. 

Receirers. — A receiver of a corporation appointed by the circuit court of the 
United States cannot sue in the state courts in his own name nor without order 
of the court to recover property of, or collect debts due to, the corporation. Bat- 
tle V. Davis, 66 — 252. 

Husband of a plaintiff in an action for breach of promise.— The hus- / 
band of a plaintiff in an action for breach of promise, married since suit com- 
menced, is not a necessary party thereto. Shuler v. MiUsap, 71 — 297. 

Trustee with an interest.— Where a note is handed to a partv without en- 
dorsement by the payee to collect and out of the money, when collected, to paj 
himself a debt which the payee owed him and pay the balance to the payee, such 
party is entitled to sue upon the note. Willey v. Catling, 70—410. 



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Action upon a note for purchase -monejr of land. — An action upon a note 

executed to a deceased person during his lifetime for land sold by him should be 
brought in the name of his personal representative. Blankenship v. Hunt^ 
76—377. 

Heirs at law of mortgagee.— Generally speaking, the heirs of a mortgagee 
are necessary parties to proceedings to foreclose. Where the mortgagee assigned 
his interest in the mortgaged property, became insolvent and left the state, leav- 
ing in his heirsy who are non-residents, the dry legal title, they are not necessary 
parties. Elheridge v. Vernon, 71 — 184. 

Change of ownership pendente lite* — If a change of ownership takes 
place during suit, the new owner can file a supplemental complaint. Murray v. 
Ferris, 71 — ^492, 

Action by personal representative in his representatire capacity. — 

The personal representative must sue, upon causes of action ta which the estate 
is the real party in interest, in hi& representative capacity. Rogers v. Gooch, 
87—442. 

Assignee of part of the demand. — ^Where the holder of a chtim, secured by 
a hen, prior to the commencement of the action assigns a portion of his claim to 
another, such assignee is not a necessary party to the action. Boyle v, Robbins^ 
71—130. 

An action to try the title to a public office. — An action to try the title to- 

a public office may be brought by the attorney general, either on his own in- 
• ' formation or on the complaint of a private party. People v, Htlliard, 72 — 169 ; 

Saunders v. Gathng, 8i — 298 ; Brown v. Turner, 70—93. See § 607 ^osf and 
. ' notes thereto. 

Unless expressly prohibited. — A party has a right to sue in his own name 
in all cases unless expressly prohibited. Brown v. Turner, 70—93. 

Assignee of nOR'negotiable paper.— The assignee of paper non-n^otiable 
can sue in his own name, (Bank v. Bynum, 84 — 24,) but he succeeds only to 
the rights of the assignor and is affected by all defenses against him at the date 
of the assignment or which accrued before notice thereof to the maker. Havens 
V. Potts, 86—31. 

The holder of a bond which is not n^otiable may sue upon it in his own 
name. Sutton v. Owen, 65 — 123. 

Holder of unendorsed negotiable paper.— The real owner of a negotiable 
note may sue upon it without endorsement. Andrews v. McDaniel, 68 — 385. 

The law presumes that the holder of negotiable paper is the owner and took it 
for value and before dishonor, and that an undated endorsement of the same was 
made at the date of the note. Tredwell v. Blount, 86 — 33 ; Pugh v. Grant, 

86—39- 

The possession of an unendorsed negotiable note or bond raises a presumption 
that the holder is the rightful owner thereof, and this presumption is not rebutted 
by a denial in the answer. Jackson v. Love, 82 — 405. 

Assignment **forcollection.'*— The purchaser of a note not endorsed, 
from one to whom the obligee had given it for the purpose of collection, does not 
become the real party in interest. McMinn v. Freeman, 68 — 341. 
; ' • A party to whom a note is assigned, merely for the purposes of collection, can 

^, y not bring suit in his own name upon it. Abrams v. Cureton, 74—523. 

C Bond to make title. — A bond to make title to land on the payment of the 
y purchase-money may be assigned, and an action for damages for non-perform- 
/ ance brought by the assignee. Utley v. Foy, 70—303. 

Purchaser ft*om the attorney of administrator. — One purchasing a note, 
given to one who died intestate in Virginia, from the attorney of his administra- 
tor, obtains the legal title and may sue thereon. Riddick v. Moore, 65 — ^382. 

Administrator of deceased guardian. — An administrator of a deceased 

guardian cannot maintain an action on the bond of a clerk and master for a fund 
ue the ward. Davis v. Fox, 69 — 435. 






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Suits on notes executed to a special administrator or receiTor.— A 

general administrator, succeeding a special administrator or a receiver, may sue in 
his own name on notes given to the special administrator. Cowles v. Hayes, 
71—230. 

Assigrnee of one of sereral payees. — One of three persons to whom a note 
is payable, as executors, cannot assign it so as to enable the assignee to sue in 
his own name. — ^Johnson v. Mangum, 65 — 146. 

Guardian after settlement may sue in liis own name.— The relation of 
trust between guardian and ward may continue after settlement, for any purpose 
or with no purpose, if the parties desire. Mebane v. Mebane, 66 — 334. 

Action for recorery of real estate* — An action for the recovery of real es- 
tate can be prosecuted by the real owner, notwithstanding adverse possession by 
a third person at the time of the conveyance, although the action was begun be- 
fore the statute permitting this to be done. Buie v. Carver, 75 — 559; Justice v. 
Eddmgs, 75—581. 

Action by equitable owner of real estate.— The owner of real estate can 
recover it in an action of ejectment although the legal estate is in his trustee. 
Murray v. Blackledge, 71 — ^492 ; Farmer v. Daniel, 82 — 152 ; Condry v. Che- 
shire, 88—375. 

The equitable owner of land may maintain an action for its recovery though 
the*legal estate is in his trustee. Murray v. Ferris, 71 — 492. 

A purchaser of an equity of redemption has a sufficient legal interest in the 
land to enable him to recover possession thereof from the mortgagor. Black v. 
Justice, 86—504 ; Davis v. Evans, 5 Ire., 525. 

The grantee in a deed conveying only a life estate, though it was intended to 
have bwn made in fee simple, cannot, after the death of the grantor, maintain an 
^ action for trespass as the equitable owner in possession. Henley v. Wilson, 

: 77—216. 

J Assignment without prejudice. — A defendant can not set off against the 

assignee of a note, assigned after maturity, the indebtedness of the assignor to 
him at the date of the assignment. McConnaughey v. Chambers, 64 — ^84 ; 
Neal V. Lea, 64 — 678. 

The case of Neal v. Lea is expressly overruled and the contrary doctrine 
clearly held in Harris v. Burwell, 65 — 584. 

A note transferred after it is due, with or without endorsement, is subject to 
any set-off which the maker had against any holder at the time of his transfer or 
before notice thereof, Martin v. Richardson, 68 — 255 ; Whedbee v. Riddick, 
79 — 521 ; Pugh V. Grant, 86 — 39. 

In an action for damages for non-performance of a bond to make title, a note 
given to one of the obligors to induce her to submit to a private examination can 
not be used as a counterclaim. Utley v. Foy, 70—303. 

A note in renewal of a former note of the maker for money won at cards, given 
to one who is endorsee of such former note for value and without notice is not 
affected by the ^a/«*«^ consideration. Calvert v. Williams, 64 — 168 ; contra if 
the new note had been executed to the original payee. Pahner v. Giles, 5 Jones 
Eq., 75. 

Assigrnment of non- negotiable paper before maturity. -The assignee of 
non-negotiable paper, although he takes it before maturity and for value, is bound 
by all the equities existing at the time of the assignment and until notice thereof 
to the maker. Bank v. Bynum, 84 — 24 ; Havens v. Potts, 86 — 31. 

Negotiable paper endorsed before maturity. — A negotiable note endorsed 
before maturity, is not subject to a set-off in favor of the maker of a debt by the 
payee at the time of making the note. The presumption of law is tfiat the holder 
of such paper is the owner, that he took it for value and before dishonor, and 
that an undated endorsement thereon was made at the date of the note. Tred- 
well V. Blount, 86—33; Pugli v. Grant, 86 — 39. 

See §§ 179, 243 and 244 /<?j/ and cases there cited. 

6 



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42 clark'5> code of civil procedure. 

See. 17H. Aeti(ni by and against a married wmnan. C C# 

When a married woman is a party, her husbaud must be 
joined with her, except that, 

(1) When the action concerns her separate property, she 
may sue alone. 

Where the action concerns her separate property.— A married woman 

may sue alone when the action concerns her separate property. McConnac v. 
Wiggins, 84—278. 

Husband ne^iectingr to employ counsel.— Where the wife sued jointly 
with her husband, accepts service of the summons, relying on him to employ 
counsel, which he fails to do, she can be relieved from a judgment taken by de- 
fault against her. Nicholson v. Cox, 83 — 48. 

Counsel selected by the husband.— A judgment against a married woman, 
appearing in the suit, brought against her jointly with her husband, by counsel of 
her husband's selection, is binding on her, unless it is obtained by the fraudulent 
\ K\/ combination of the husband with the adverse litigant. Vick v. Pope, 81 — 22. 

\ \ V ^ Tower of attorney to dismiss an action.— A power of attorney, given by 

a married woman to dismiss an action concerning her land, need not be regis- 
tered. Hollingsworth v. Harman, 83 — 153. 

Personal representative of husband a necessary party.— In an action 
to foreclose a mortgage upon the separate estate of the wife, made to secure a 
debt of the husband, his personal representative (he being dead) is a necessary 
party. Mebane v. Mebane, 80 — 34. 

Wife not a necessary parly. — The wife is not a necessary party in an ac- 
tion brought by her husband as tenant by the courtesy initiate to recover her 
land. Wilson v. Arentz, 70 — 670. 

Where the feme covert is a defendant.— A decree for the sale of land is 
not conclusive upon a feme covert defendant whose husband is not served with 
process nor otherwise made a party, nor leave obtained from the court to proceed 
without him. Gully v. Macy, 81 — 356. 

Action for breach of promise. — The husband of a plaintiff married after 
suit brought is not a necessary party in an action for breach of promise of mar- 
riage. Shuler v Millsap, 71—297. 

The rij^ht to sue aione does not remove the protection of corerture as 

regards the statute of limitations. — The right to sue alone is a privilege 
which may be used to the advantage of a feme covert, but can not operate to her 
prejudice, and does not remove the disability of coverture so as to allow the stat- 
ute of limitation to bar her right of action. Lippard v. Troutman, 72 — 551 ; 
Briggsv. Smith, 83 — 306. 

Service of summons. — In all actions whose object is to bind real estate be- 
longing to the wife, service of the summons must be made personally upon her 
as well as upon her husband. Rowland v. Perry, 64 — 578. 

(2) When the action is between herself and her husband 
she may sue or be sued alone ; 

And in no case need she prosecute or defend by a guard- 
ian or next friend. 

A married woman may sue her husband or be sued by him alone. McCor- 
mac V.Wiggins, 84 — 278 ; Manning v. Manning, 79 — 293. 



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CLARK'S CODE OF CIVIL PROCEDURE. 43 

Sec 179. Action by executor, trustee, d:c* C C P., «. 57. 

An executor or administrator, a trustee of an express 
trust, or a person expressly authorized by statute, may sue 
without joining with him the person for whose benefit the 
action is prosecuted. A trustee of an express trust, within 
the meaning of this section, shall be construed to include a 
person with whom, or in whose name, a contract is made 
for the benefit of another. 

Gaardian* — A guardian may sue for the benefit of his wards without joining 
the wards as parties. Rankin v. Allison, 64—673. 

Sariiror of joint groardians* — A survivor of joint guardians may sue on a 
note payable to both. Biggs v. Williams, 66 — 427; Mebane v. Mebane, 66 — 334. 

Administrator of g^oardian* — The administrator of a deceased guardian 
can not maintain a suit on the bond of a clerk and master for a sum due the ward 
of such deceased guardian. Davis v. Fox, 69—435 ; Alexander v. Wrislon, 
Si — 191. 

Trustees* — A trustee may sue upon a bond, given to his cestui qut trusty in 
his own name. Davidson v. Elms, 67 — 228. 

Where a judgment recovered against a guardian has been assigned to a person 
who paid the amount of it with the money of one of the sureties, the plaintiff in 
such judgment, and not the assignee of it, is the trustee of an express trust, who 
can sue, as relator in an action upon the guardian bond. . Jones v. McKinnon, 
87—294. 

An assignment of a note for the purpose of collection merely does not consti- 
tute the assignee a trustee of an express trust. Abrams v. Cureton, 74 — 523. 

Receirer. — A receiver appointed by the United States court is not a * 'trustee 
of an express trust " within the meaning of this section, nor one "expressly au- 
thorized by statute," so as to enable him to sue in behalf of the corporation 
placed in his hands for settlement. Battle v. Davis, 66 — 252. 

Administrator* — In an action by an administrator against the bond of a pre- 
vious administrator, the next of kin of the intestate need not be joined. Flaclc v. 
Dawson, 6g — ^42. See ako cases cited under sec. 177 ante. 

Sec, 180. Infants to sue by guardian or next friend. C. C. 
jP., s. 58. 1870''71, c. 233, s. 1. 187 ±-'2, c. 95, s. 1. 

In actions and special proceedings whenever any of the 
parties plaintiflFare infants, idiots, lunatics or persons non 
compos mentis, whether said infants, idiots, lunatics or per- 
sons non compos mentis^ be residents or non-residents of this 
state, said infants, idiots, lunatics or persons non compos men- 
lis shall appear by their general or testamentary guardian, 
if they have any within the state, and if there shall be no 
^uch gliardian, then said infants, idiots, lunatics or persons 
non compos mentis may appear by their next triend. 

Persons haringr an adverse interest cannot act as next fHend or 
ffoardian* — No one who has an interest in the action hostile to that of the 
infants wiU be p'ermilted to conduct the same. George v. High, 85 — 113. 



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44 CLARK S CODE OF CIVIL PROCEDURE. 

One who conducts a suit as guardian or next friend of infants is not a party 
of record nor estopped by it. The infants themselves are the real plaintiffs. 
George v. High, 85 — 113 ; Branch v. Goddin, 60 — 497 (2 Wins., 105) ; Mason 
V. McCormick, 75 — 263. 

Sec. 181. InfantHf d^c,^ to defend by guardian ad litem. C. 
€. r.y 8. 59. 1870''7h c. 233, 8. 5. 1871-'2, c. 95, 8. 2. 

In all actions and special proceedings, whenever any of 
the defendants are infants, idiots, lunatics or persons non 
compos mentis^ said infants, idiots, lunatics or persons non 
compos mentis shall defend by their general or testamentary 
guardian, if they have any within this state, whether said 
infants, idiots, lunatics or persons non compos mentis are res- 
idents or non-residents of this state; atid if said infants, 
idiots, lunatics or persons non compos mentis have no gen- 
eral or testamentary guardian within this state, and any of 
the defendants in said action or special proceeding shall 
have been summoned, then it shall be lawful for the court, 
wherein said action or special proceeding is pending, upon 
motion of any of the parties to the said action or special 
proceeding, to appoint some discreet person to act as guard- 
ian ad litem to defend in behalf of such infants, idiots, luna- 
tics or persons non compos mentis^ and such guardian so ap- 
pointed shall, if the cause in. which he is appointed be a 
civil action, file his answer to the complaint within the 
time required for other defendants, unless such time be ex- 
tended by the court for good cause; and if the cause in 
which he is so appointed be a special proceeding, a copy of 
the complaint, with the summons, shall be served on said 
guardian ad litem, and after twenty days'noticeof said sum- 
mons and complaint in such special proceeding, and after 
answer filed as above prescribed in such civil action, the 
court may proceed in the cause to final judgment and de- 
cree therein in the same manner as if there had been per- 
sonal service upon the said infant, idiot, lunatic or person 
non compos mentis, defendants, and any decree or judgment 
in the ease sliall conclude the infant, idiot, lunatic or per- 
son non compos mentis, defendants, as effectually as if he or 
they had been personally summoned. 



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CLARK'S CODE OF CIVIL PROCEDURE. 4$ 

General gnardiaiU — Service of process against infants should be made on 
their general guardian, if they have one. Chambers v. Penland, 78 — 53. 

Guardian a€l litem cannot be appointed until the gammons is serred 

upon the infant defendants. — K guardian ad litem cannot be appointed until 
the summons is properly served and the other requirements of this section com* 
plied with. Hyman v. Jarnigan, 65 — 96. 

Qnere* — Whether a valid sale of aa infant's land can be made without ser- 
vice of a summons upon him. Allen v. Shields, 72 — 504. 

This section permits the appointment of a guardian ad Utem for a defendant 
who is an infant or non compos^ only after service on the infant, &c. Moore v, 
Gidney, 75 — 34 ; Nicholson v. Cox, 83 — 44. 

A decree is not conclusive upon infant defendants who are not served witK 
process, and where the guardian ad Utem was nominated by the plaintiff, and 
tiled an answer prepared for him at the plaintiff's instance, without enquiry into 
the rights of the infant defendants, the decree will be set aside, (julley v. 
Macey, 81 — 356. 

A judgment obtained before the C. C, P. will not be vacated because some 
of a number of infant- defendants, united in interest, appeared by a guardian 
ad litem appointed without process previously served on such infants. As to 
actions brought since C. C. P., a previous service of process is required before 
the court can appoint a guardian ad litem, Matthews v. Joyce, 85 — 258. 

Infants cannot accept servit^e* — Infant defendants cannot accept service 
of process. Bass v. Bass, 78 — ^374 ; Nicholson v. Cox, 83 — 44. 

Where the guardian ad litem does not aceept«~If the guardian ad 

litem who is appointed does net accept and defend as the law p^-escribes, the 
judgment is void as to the infants. Isler v. Murphy, 71 — 436. 

Sec. 182* Guardian ad litem to file atiswer. IS^O-'l, c% 
2.Wf «. 4. 

Whenever any guardian ad litem shall be appointed, he 
shall file an answer in said action or special proceeding, 
admitting or denying the allegations thereof; the costs and 
expenses of which said answer, in all applications to sell or 
divide the real estate of said infants, shall be paid out of 
the proceeds of the property, or in case of a division, shall 
be chai:ged upon the land, if the sale or division shall be 
ordered by the court, and if not ordered in any other man- 
ner the court shall direct. 

Answer. — The guardian ad litem should file an answer for the infant defend* 
ants. Moore v. Gidney, 75 — 34. 

If the guardian ad litem files, without inquiry into the rights of the infant de- 
fendants, an answer prepared for him at the plaintiff 's instance, the judgment 
will not conclude the infant defendants. GuUey v. Macey, 81 — 356. 

Sec. 183. niiofo heidaintiffs. C. C. P., 8. 60. 

All4)ersons having an interest in the subject of the action, 

and in obtaining the relief demanded, may^ be joined as 

plaintiffs except as otherwise provided. '^ v« 

Widow and administrator of a tenant in common.— Where one tenant 
in common dies, both his widow and administrator are necessary parties in a 



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46 CLARK'S CODE OF CIVIL PROCEDURE. 

petition filed by the other tenants in common for partition. Gregory r. 
Gregory, 69 — 522. 

Tenants in common. — The executor of one of two tenants in common may 
sue on the bond of a clerk of the superior court to recover money received by 
him on a sale of the lands for partition, without joining the co-tenant of his tes- 
tator. State V. Blair, 76 — 78. 

Stockholders Individaallj liable.— Where the stockholders of a bank are 
made by the charter liabh- to '* pay the creditors of the bank," the creditors are 
joint obligees, and the action must be brought in the name of the plaintifiF and 
all other creditors who will become parties to the action. Von Glahn v. Har- 
ris, 73 — 323 ; Von Glahn v. Latimer, 73 — 333 ; Long v. Bank, 81 — 41. 

Creditors. — Different creditors may unite in one action to set aside a fraud- 
ulent conveyance of the common debtor. Wall v. Fairley, 73 — 464 ; Mebane v. 
Lay ton, 86 — 571. 

Next of kin. — In a suit upon an administration bond the next of kin of the 
intestate are not necessary parties, and in such a suit the administrator of the 
principal in the bond need not be joined. Flack v. Dawson, 69 — 42. 

The interest which requires a partj to be jolned.—The interest which 

requires an additional party to be made is an interest in the controversy and not 
an interest in the thing which is the subject of controversy. Wade v. Saunders, 
70—277. 

Conflicting: claimants. — A party who is sued on a note given for the rent • 
of land may allege that a third party claims the land by a paramount title, and 
has brought suit for damages during the same term, for which the note was 
given, and require such a party to be made plaintiff. McKesson v. Menden- 
hall, 64 — 502. 

Withdrawal of plaintiff. — One of several parties plaintiff withdrew, on 
leave of the court, from the action : Hcld^ he is not bound by a subsequent 
judgment rendered in the case. Owen v. Alexander, 70—1. 

See also cases cited under § 179 ante. 

Sec, 184. Who is to he Klefendattts. C C -P., 8. 01. 

Any person may be made a defendant who has, or claims, 
an interest in the controversy adverse to the plaintiff, or 
who is a necessary party to a complete determination or 
settlement of the qut;stions involved therein ; and in an 
action to recover the possession of real estate, the landlord 
and tenant thereof may be joined as defendants; and any 
person claiming title or right of possession to real estate 
may be made party plaintiff or defendant, as the case may 
require, to any such action. 

Proceedings to lay off dower. — One claiming land by purchase from a de- 
cedent is a proper party defendant in proceedings for dower therein by the 
widow of such decedent. Carney v. Whitehurst, 64 — 426; Moore, ex parte, 
64—90. 

Proceedings to foreclose. — A married woman who, with her husband, exe- 
cutes a mortgage of land is a necessary party defendant in foreclosure pro- 
ceedings. Nimrockv. Scanlin, 87 — 119. 

Attachment of mortgaged property.— So, too, a mortgagee may join with 
his mortgagor in defending an attachment against the mortgaged property. 
Bearv. Cohen, 65 — 511. 



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CLARK'S CODE OF CIVIL PROCEDURE. 47 

Action for the recovery of real estjite. — When in an action of ejectment 
both the plaintiff and a third party claim to be 'he landlord of the defendant, 
such tbird party has a right, upon affidavit, to be let in as a party defendant to 
the action. Rollins v. Rollins, 76—264. 

In a suit by a purchaser at an execution sale, seeking to dispossess the hus* 
band of his uife's land, the wife's possessory right is such an interest in the 
controversy as entitles her to be made a party defendant. Cecil v. Smith, 
Si— 285, 

In an action to recover land, a third party, claiming to be joint owner with 
the defendant, has the right, on affidavit, to be let in as a party defendant. 
Lytle v. Bergen, 82 — 30C. 

In an action to recover land, w4iere the defendant in possession has mort- 
gaged the land, and it has been sold, upon default, under the mortgage, the 
purchaser at the sale is entitled to be made a parly def endan t upon application. 
Keaihley v. Branch, 84—202 

Where any one has equitable cUtms upon land he should be made a party 
defendant, in an action to recover land, but not in an action to enforce specific 
performance of a contract to convey it, Swepson v. Johnson, 84 — ^449. 

Landlord* — The landlord may be joined with the tenant as defendant in an 
action to recover real property, and may set up a separate defence. Harkey v. 
Houston, 65 — 137; Isler V. Foy, 66 — 547; Batchelor v. Macon, 67 — 181. 

A landlord let in to defend an action of ejectment is not restricted to the 
defences to which his tenant is confined. Isler v. Foy, 66 — 547; Maddrey v. 
Long, 86 — ^383. 

Interest hi the controversy. — The claim adverse to the plaintiff must be 
of an interest in the controversy, and not merely an interest in i\\Q thing in con- 
troversy, to require such claimant to be made a party defendant. Wade v. 
Saunders, 70 — 277. 

Co-surety* — In an action against one co-surety on a note, upon an allega- 
tion that said note had been delivered up for less than its value by reason of 
fraudulent representations of such co-surety, the other co-surety should be 
made a party defendant. Gill v. Young,* 82 — 273. 

Helrs-at-law. — The heirs-at-law are necessary defendants in an action for 
the price of land brought against a personal representative of a deceased ven- 
dee. Paschal v. Brandon, 79 — 504. 

Death of defendant after rerdlct and before judgment.— Where a 

defendant dies after verdict and before judgment, the plaintiff is entitled to 
judgment without making the personal representative a party. Beard v. Hall, 
79—506. 

Damages from separate acts of several persons.— When damage results 
from the separate acts of several persons havmg a like interest adverse to the 
plaintiff, they may all be united as defendants. Long v. Swindell, 77 — 176. 

Severance of defendants* — In an action against several defendants whose 
liability is joint and whose interest in the action is identical, the defendants 
will not be permitted to sever in their defence. Von Glahn v. DeRosset, 
76 — 292. 

See also § § 177 and 179, ante, and § § 185 and iS6, post. 

Sec, 185, Parties to he Joined, &c. C. C. jP., «. 62. 

Of the parties to the action, those who are united in inter- 
est must be joined as plaintiffs or defendants; but if the 
consent of any one who should have been joined as plain- 
tiff cannot be obtained, he may be made a defendant, the 
reason thereof being stated in the complaint ; and when the 



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48 CLARK'S CODE OF aVIL PROCEDURE. 

questioD is one of a common or general interest of many 
persons, or where the parties may be very numerous, and 
it may be impracticable to bring them all before the court, 
one or more may sue or defend for the benefit of the whole. 

NIn foreclosure proceedings. — In foreclosure proceedings all the mort- 
gagees and judgment creditors should be made parties, in order to have a full 
adjustment of the rights of each. Hinson v. Adrian, 86 — 6i. 

In an action to foreclose a mortgage, the mortgagees are necessary parties, 
that the legal title may pass to the purchaser. A mortgagee who has assigned 
his interest is not a necessary party. PuUen v. Heron Mining Co., 71 — 567. 

Wife of mortgagor* — The wife of a mortgagor has no such interest in the 
lands mortgaged as to make her a necessary party to proceedings to foreclose a 
mortgage. Etheridge v. Vemoy, 71 — 184. 

[Note. — This seems to apply only where the mortgage is for the purchase- 
money of the land noortgaged, or where the marriage was pqor to 1 867 J. 

Proceedings to restore lost records. — SembU^ that all persons whose 
estates may be affected by a proceeding to restore lost records snould be made 
parties. Cowles v. Hardin, 79 — 577. 

Action to sabject land of a deceased debtor*— The personal representa- 
tive of a deceased person is a necessary party to an action by creditors against 
the heirs-at-law to subject land to the payment of debt, when the alleged debt 
is denied. Wall v. Fairley, 77— 105. 

Heirs of deceased partners* — The heirs of deceased partners are not nee.* 
essary parties to an action to subject the real property of the firm to the claims 
of its creditors. McCaskill v. Lancashire, 83 — 393. 

Wife of a defendant* — In a proceeding by the next of kin against the 
administrator for a settlement, it is not ground for demurrer that the defend- 
ant's wife, who is one of the next of kin. is mi»de co-defendant with him with- 
out alleging in the complaint that she had refused to join as plaintiff. McCor- 
mack V. Wiggins, 84 — 278. 

Next of kin* — In an action upon an administration bond the next of kin of 
the principal's intestate are not necessary parties, and the administrator of the 
principal need not be joined as a defendant. Flack v. Dawson, 69 — 42. 

Practice in eqnitj as to joinder in parties.— -The practice in equ-ty as to 
joinder in parties applies to all actions, legal as well as equitable, under the 
C. C. P. Hughes V. Boone, 81 — 204. 

Joinder of unnecessary parties*— The joinder of unnecessary parties is 
immaterial, except as to costs. Rowland v. Gardner, 69 — 53 ; Falls v. Gam- 
ble, 66 — 455 ; Burnes v. Ashworth, 72 — 496. 

Additional parties* — Additional parties, if application is made by them, 
i can be joined by amendment. Isler v. Koonce, 83 — 55. 

Proceedings to reniore a trustee* —Creditors to be paid out of a sinking 
fund are not necessary parties to a proceeding to remove the trustee of such 
fund. Railroad v. Wilson, 81 — 223. 

Suit to enforce a trust* — In a suit to enforce a trust, the trustee and cestuis 
que trust are all necessary parties, except where the trustee has assets sufficient 
to pay all the creditors in full and has paid all except plaintiff. Barrett v. 
Brown, 86—556. 

Parties Interested in the ftind.— Where the pleadings show that there 
are others besides the plaintiffs interested in the fund, the defendant has a 
right to require that they be made parties to the record. Southall v. Shields, 
81—28. 

Beyersionarj interest* — Persons having a reversionary interest in land are 
necessary parties in a proceeding for partition thereof. Bell v. Adams, 82— II8. 



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CLARK'S CODE OF CIVIL PROCEDURE. 49 

Legatees. — ^In proceedings by legatees to secure a fund, the contingent 
interest of the ulterior legaiees (where there is a devise over) should be represented 
by making them parties to the action. Peacock v. Harris, 85 — 146. 

Action to recover land. — When a defendant in an action to recover land 
sets up an equitable defence, all persons interested in that equity are necessary 
parties. Ten Broeck v. Orchard, 74 — 409. 

One claiming title paramount and advei-se to both plaintiff and defendant, in 
an action to recover real jiroperty. has no right to be made a party. He must 
be connected in interest w iih either one or the other. Colgrove v. Koonce, 
76—363- 

Proceedings to vacate charter. — A judgment creditor of a corporation 
may come in as a party to a proceeding by the attorney-general to vacate the 
charter. State v. Simonton, 78 — 57. 

Heirs of deceased partner. — The heirs of deceased partners are not neces- 
.sary parties in an action to subject the real estate of the firm. McCaskill v. 
Lancashire, 83—293. 

Heirs of a testator. — Nor are the heirs of a testator, under a will devising 
the land to b< sold and converted into money, necessary parties in a proceeding 
to sell the land. Harris v. Bryant, 83 — 568. 

Wliere parties in interest are very namerons.— Where it is alleged that 
the parlies are so numerous that it is impracticable to bring them all before the 
court, one may sue or be sued for all the others. Bronson v. Ins. Co., 85 — 411. 

Widow of tenant in common.— The widow of a deceased tenant in com- 
mon is a necessary party to a proceeding for partition of the land held in joint 
tenancy by her husband. Gregory v. Gregory, 69 — 522. 

"Wife not a necessary party. — The wife is not a necessary party to an 
action brought by her husband, as tenant by the courtesy initiate, to recover 
her land. Wilson v. Arentz, 70 — 670. 

Joint obligations. — The rule of the Revised Code, chapter 31, section 84, 
that " in cases of joint oblipition of partners in trade or others, suit may be 
brought against any or all 01 them '* is repealed by this section, except as to 
the classes specified in § i^ty post, Merwin v. Ballard, 65 — 168. 

Trespass* — A defendant in an action of trespass in et amiis begun before 
the Code was adopted and tried afterward, having neglected to plead in abate- 
ment, for non-joinder of necessary parties, or to demur under ^ 239, or raise 
the objection by answer under g 241, can not take advantage of it afterward. 
Lewis V. McNatt, 65 — 63. 

In the supreme court. — If it should appear from the record on appeal that 
other parties are necessary to a final determination of the matters involved, the 
case will be remanded that they may be brought in by legal process. Brooks 
V. Headen, 80 — ii. 

See also § § 177, 179, 183 and 184, ante, and § § 186 and 379, post, and cases 
there cited. 

Sec. 186, Parties to bills and nates ^ &c. C C P., «. 63* 

Persons severally liable apon the same obligation or in- 
strument, including the parties to bills of exchange and 
promissory notes, may all or any of them be included in 
the same action at the option of the plaintiff. 

Joint contracts* — Section 84 of chapter 31 of the Revised Code is repealed, 
except as to those cases embraced by this section of the Code of Procedure. 
Merwin v. Bi^Hard, 65 — 168. 

See § 187 re-enacting the provision of the Revised Code referred to. 

7 



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50 CLARK'S CODE OF CIVIL PROCEDURE. 

Independent contracts not having the same parties.— A cause of action 
in which several defendants are jointly liable can not be united in the same 
action with one in which only part of them are liable. Logan v. Wallis, 
76—416. 

A suit can be maintained upon two official bonds in one action against the 
principal and such sureties as are upon both bonds, though there are other sure- 
ties to both bonds who are not parties to the action. Syme v. Bunting, 86 — 175. 

Endorser of a not-e after judgment on it.— One who endorses a note after 
judgment rendered on it, %f he makes any contract at all with the payee or his 
endorsee, becomes only a guarantor, and cannot be joined with the maker and 
previous endorser in an action on the judgment. VVooten v. Maultsby, 69 — 462. 

Former guardian. — A former guardian is not a necessary party to a suit 
brought on a bond, made payable to him as guardian, by a firm of which he 
was a member, and transferred to his ward on settlement. Gudger v. Baird, 
66—438. 

Sec. 187» Joint contracts of co-partners, B, C, c. 31, «. 
84. 1871''2y c. 24, 8. 1. 

In all cases of joint contracts of co-partners in trade or 
others, suit may be brought and prosecuted on the same 
against all or any number of the persons making such con- 
tracts. 

When one of the obligors becomes administrator of one of the pay- 
ees. — If one of several obligors becomes administrator of one of the payees, 
the right to sue the principal obligor remained, even at law under the old sys- 
tem of procedure. McDowell v. Butler, 3 Jones Eq., 311. 

Covenant not to sne. — A covenant not to prosecute the suit to judgment, 
given to one of two makers of a promissory note, does not extinguish the note 
as to the other maker. Winston v. Dalby, 64 — 299, 

Corenant not to issue exeention. — A covenant by a judgment creditor 
with the principal debtor, after judgment rendered, not to issue execution, 
releases the sureties. Evans v. Rapier, 74 — 639. 

Hec. 188. Actions, tvhen not to abate. C. C. P., s. 04. R. C, 
c. 1, s. 4. li. C, c. 40, s. 43. 

(1) No action shall abate by the death, marriage or other 
disability of a party, or by the transfer of any interest 
therein, if the cause of action survive or continue. In case 
of death, except in suits for penalties, and for damages 
merely vindictive, marriage or other disability of a party, 
the court, on motion at any time within one year thereafter, 
or afterwards on a supplemental complaint, may allow the 
action to be continued by or against his representative or 
successor in interest. In case of any other transfer of inter- 
est, the action shall be continued in the name of the orig- 
inal party, or the court may allow the person to whom the 
transfer is made to be substituted in the action. 



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CLARK'S CODE OF CIVIL PROCEDURE. 5 1 

Action for waste. — When, in an action to recover damages for waste against 
a tenant for life, the defendant dies, his personal representative may be made 
a party. So much, however, of the action as is for punitory damages abates. 
Shields v. Lawrence, 72 — 43. 

Action for conversion* — So, too, an action for damages for the wrongful 
taking and conversion of personal property does not abate. Sledge v. Reid, 
73—440. 

Action for trespass causing dcatlu — An action of trespass, brought to re- 
cover damages for a death caused by a wrongful act, does not abate by the death 
of the defendant. Collier v. Arlington, Phil., 356. 

Action for personal injuries. — An action to recover damages for injuries 
to the person does not abate by the death of the plaintiff, except as to vindic- 
tive damages. Peebles v. N. C. R. R., 63 — 238. 

Action for assault and batterj. — An action for damages for an assault does 
not survive to the personal representative. Hannah v. R. R. Co., 87 — 351. 

Action for breacll of promise. — An action for damages for breach of prom- 
ise to marry does not abate upon the death of the defendant. Allen v. Baker, 
86—81 ; Shuler v. Millsap, 71 — 297. 

Action for tlie tort of the wife. — Where husband and wife are jointly sued 
for the wrong of the wife, and the wife dies, the action abates. Roberts v. 
Lisenbee, 86^136. 

Where cause of action survives, abatement is only on motion.— Where 

the cause of action survives, the suit can be abated only on motion of a party, 
and whether it shall be then is a matter for the discretion of the court. Moore 
v. N. C. R. Ri Co.» 74 — 528 ; Lord v. Beard, 79 — 5 ; Baggarly v. Calvert, 
70—688. 

Death of a party after Judgrment. — When a party to an action dies after 
judgment the action abates, just as it would by his death before judgment. 
Aycock V. Harrison, 71 — 432. 

Plea in abatement must be insisted on before yerdict.— A party can not 
have the benefit of a plea in abatement by a motion in arrest of judgment. The 
pendency of a former action is strictly a matter of abatement, and must be set 
up in the answer or insisted upon before verdict, else it is deemed waived. 
Hawkins v. Hughes, 87 — 115. 

(2) After a verdict shall be rendered in any actitm for a 
wrong, such action shall not abate by the death of a party. 

A plaintiff who has recovered a judgment against an administrator can revive 
the same, after his death, against the administrator de bonis non. Thompson v. 
Badham, 70 — 141. 

(3) At any time after the death, marriage or other disa- 
bility of the party plaintiff, the court in which an action is 
pending, upon notice to such persons as it may direct, and 
upon application of any person aggrieved, may, in its dis- 
cretion, order that the action be deemed abated, unless the 
same be continued by the proper parties, within a time to 

be fixed by the court, not less than six months, nor exceed- / ^. 
ing one year from the granting of the order. 1 ^ ' 

The law entrusts the power of abatement to the court to prevent advantage 
being taken of the ignorance or poverty of the parties. The court will accord- / 
ingly so rule, in each case, as to time and notice, as to promote the ends of jus- 
tice. Baggarly v. Calvert, 70 — 688. 



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52 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 189. Court may detertniiie controversy and inter- 
jyleader, C. C 1*., «. 65. 

The court, either between the terms or at a regular term, 
according to the nature of the controversy, may determine 
any controversy before it, when it can be done without prej- 
udice to the rights of others or by saving their rights ; but 
when a complete determination of the controversy cannot 
be had without the presence of other parties, the court must 
cause them to be brought in. And when in an action for 
the recovery of real or personal property, a person not a 
party to the action, but having aii interest in the subject 
matter thereof, makes application to the court to be made a 
party, it may order him to be brought in by the proper 
amendment. A defendant against whom an action is pend- 
ing upon a contract or for specrfic real or personal property, 
upon proof by affidavit that a person not a party to the 
action makes a demand against him for the same debt or 
property without collusion with him, may, at any time be- 
fore answer, apply to the court, upon notice to that person 
and the adverse party, for an order to substitute that per- 
son in his place, and to discharge him from liability to 
either, on his paying into court the amount of the debt, or 
delivering the possession of the property or its value to such 
person as the court shall direct. The court, in its discre- 
tion, may make such an order. 

Appli04liion for dower* — Where a widciw, as general devisee of her hus- 
band's estate, has conveyed a large portion of the land in trust to secure heroWn 
debts, &.nd then dissents from the will and asks for dower, the trustee is not 
a necessary party to her petition. Ramsour v. Ramsour, 63 — 231. 

Action to recover real property.—Where both the plaintiff and a third 
parly claim to be the landlord of the defendant, such third person has a right 
upon affidavit to be let in as a party defendant to an action to recover such 
property. Rollins v. Rollins, 76 — 264. 

If in such an action judgment is rendered against the tenant, no writ of pos- 
session will issue till the controversy is also decided "between the plaintiff and 
the intervener. Rollins v. Henry, 76 — 269. 

In a suit by a purchaser at an execution sale seeking to dispossess the hus- 
band of the wife's land, the wife's possessory right is such an interest in the 
controversy as entitles her to be made a party defendant. Cecil v. Smith, 
81 — 285; Young V. Greenlee, 82 — 346. 

In an action for the recovery of real property, a person who claims title, par- 
amount and adverse, both to plaintiff and defendant should nof be permitted 
to make himself a party to the action. Colgrove v. Koonce, 76—363. 

See § 184, anfe^ and notes. 



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CLARK S CODE OF CIVIL PROCEDURE. 53 

A third party claiming to be joint owner with the defendant has the right on 
affidavit to be let in as a party defendant. Lytle v. Burgin, 82 — 301. 

Where A purchased land for B, taking title to himself, and afterward con- 
veying the legal estate to C, while B conveyed her equity to D upon suit 
brought by C to obtain title and possession of the land, A is a necessary party 
to the action. Matihews v. McPherson, 65 — i8g. 

In a Justice's court; Interrener. — The question of title which arrests fur- 
ther proceedings (in actions affecting real property) before a justice is between 
the parties to the action, and a jurisdiction once acquired can not be divested by 
the intervention, in that court, of a stranger asserting a superior title in himself. 
Davis v. Davis, 83 — 71. 

Defences of intervening: landlord.— A landlord let in to defend an action 
of ejectment is not restricted to the defences to \Vhich his tenant is confined. 
Isler V. Foy, 66 — 547; Maddrey v.* Long, 86 — 383. 

Bond by interrener. — A landlord may be joined with his tenant as de- 
fendant in an action against the former for possession of the land occupied by 
him, and when so joined by the act of i869-'70, each must give bond to the 
plaintiff for costs and damages, or make the affidavit and file the certificate re- 
quired to enable him to defend as a pauper. Harkey v. Houston, 65 — 137. 

Pleadings by Intervener. — In an action by one creditor in behalf of all, 
against an executor or administrator for an account, another creditor coming in 
need not file a complaint unless-his claim is denied, but such claim must be ver- 
ified unless it is a judgment or some writing signed by the deceased. Isler v. 
Murphy, 76 — 52. 

Bight to intervene. — The right of an outside claimant to' intervene is well 
settled. Sims v. Goettle, 82 — 268 ; Toms v. Warson, 66 — 417. 

Bigllt to call in additional parties.— The defendant, upon showing that a 
third party claims an interest in the property in litigation, can have such third 
person made a party to the action. VVinfield v. Burton, 79 — 388. 

Claim of interest in attached property.— A third person claiming a mort- 
gage upon the property attached, can come in and be made a party. An issue 
would be made in the cause as to his claim. Bear v. Cohen, 65 — 511. 

Necessary parties. — Where lessors sue lessees for rent, and the defendants 
answer that other persons owned the land at the time of the lease and ever 
since, and have brought suit for the rent, such other persons are necessary par- 
ties to the action. McKesson v. Mendenhall, 64 — 286. 

Interpleader in quo warranto to vacate a charter.— The court has 
power to allow a judgment creditor of a corporation to interplead to an action 
in the nature of a quo warranto, brought by the attorney-general, to vacate the 
charter. State v. Simonton, 78 — 57. 

Bight to interplead lost bj lapse of time.— In an action for the recovery 
of personal properly, a third party claiming the same loses his right to be made 
a parly to the suit by allowing three years to pass after notice of the action, be- 
fore moving to interplead. Clemmons v. Hampton, 78 — 534. 

This section applies. — This section confers on the court the right to deter- 
mine the opposing claims of execution creditors to the fund under its control, 
upon a motion in the cause in which the execution issued which produced the 
fund. Dewey v. White, 65 — 225 ; Fox v. Kline, 85 — 173. 

This section does not apply.— The right of interpleader given by this sec- 
tion applies to an action properly constituted in court only, and not to rules or 
motions as to funds in a sheriff's hands. Bates v. Lilly, 65 — 232; Dewey v. 
White, 65 — 225; Milliken v. Fox, 84 — 107. 

This section does not embrace a case where a sheriff has an execution in favor 
of one person and levies it upon properly claimed by another than the defend- 
ant in the execution. In such case, the sheriff cannot require these persons to 
interplead. Dewey v. White, 65 — 225. 

See, also, a general discussion, without particular adjudication, in regard to 
this section, in Thomas v. Kelly, 74 — 417. 



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54 



CLARK S CODE OF CIVIL PROCEDURE, 



TITLE V. 
OF THE PLACE OF TRIAL, 



Section. 

190. Actions to be tried -where 

subject matter situated. 

191. Actions to be tried 'where 

cause of action arose. 

192. Actions to be tried where 

plaintiff or defendant re- 
sides. 

193. Actions against executors or 

administrators and upon 
official bonds. 

194. Actions against foreign cor- 



Section. 

porations; where and by 

whom brought. 
195. Change of place of trial. 
196.* Judges authorized to remove 

causes from one county to 

another. 

197. What requisite to authorize 

such removal. 

198. On removal of an action^ 

what to be sent with tran- 
script. 



Sec, 190. Actions to he tried where subject matter situated. 
C. C. P., 8. 06. 

Actions for the following causes must be tried in the 
county in which the subject of the action, or some part 
thereof, is situated, subject to the power of the court to 
change the place of trial, in the cases provided in this Code : 

(1) For the recovery of real property, or of an estate or 
interest therein, or for the determination in any form of 
such right or interest, and for injuries to real property ; 

(2) For the partition of real property ; 

(3) For the foreclosure of a mortgage of real property; 

(4) For the recovery of personal property distrained for 
any cause. 

Walrer of venue. — The venue can be waived by consent of parties. Leach 
V. W. N. C. R. R., 65—486. 

Petition for dower. — A petition for dower must be filed in the county of 
the husband's last usual residence. Askew v. Bynum, 81 — 350. 

Action by holder of notes giren for purchase of land.— An action by the 
holder of notes, given for the purchase of land, against the purchaser and oth- 
ers, asking to be subrogated to the rights of the vendor in the contract for the 
sale of the land, is in effect an action ** for the foreclosure of a mortgage of real 
estate," and must be tried in the county wh^re the land is situated. Fraley v. 
Marsh, 68 — 160. 

Action for breach of covenant to pay for Improyeiuents.— An action for 
breach of covenant in not paying for improvements made on lands by the mort- 
gagors, does not fall under the provisions of this section. Phillips v. Holmes, 
71—250. 



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i 
CLARK'S CODE OF CIvIl PROCEDURE. 5$ 

Sec. 19 !• Actions to he tried where cause of action arose, 
C. C. P., s. 07. 

Aclions for the following causes must be tried in the 
county where the cause, or some part tliereof, arose, subject 
to the like power of the court to change the place of trial, 
in the cases provided in this Code: 

(1). For the recovery of a penalty or forfeiture, imposed 
by statute ; except that, when it is imposed for an offence 
committed on a sound, bay, river, or other body of water, 
situated in two or more counties, the action may be brought 
in any county bordering on such sound, bay, river, or other 
body of water, and opposite to the place where the ofifence 
was committed ; 

(2). Againsta public officer or person especially appointed 
to execute his duties, for an act done by him by virtue of 
his office; or against a person who by his command or in 
bis aid, shall do anything touching the duties of such officer. 

Hvdta agraiost COnnty commissioners. — Suits against county commissioners 
muht be brought in the county of which they are commissioners. Johnston v. 
Com'rs of Cleveland Co., 67 — loi ; Alexander v. Com'rs of McDowell Co., 
67 — 330 ; Jones V. Com'rs of Bladen Co., 69—412 ; Steele v. Com'rs of Ruth- 
erford, 70 — 137. 

Sec. 192. Actions to he tried where plaintiff or defendant 
resides. C. C. r., s. 68. 1808''9, c. 59. 1808''9, c. 277, 
s.6. 

In all other cases the action shall be tried in the county 
in which the plaintiffs or the defendants, or any of themi 
shall reside at the commencement of the action ; or if none 
of the defendants shall reside in the state, then in the county 
in which the plaintiffs, or any of them, shall reside : and if 
none of the parties shall reside within the state, then the 
same may be tried in any county which the plaintiff shall 
designate in his summons and complaint, subject, how- 
ever, to the power of the court to change the place of trial, 
in the cases provided by statute. 

Parties of record. — The " parties" plaintiff and defendant in the contem- 
plation of this section, are the partus of record and no objection to the venue 
can be taken by pleading that a party for whose benefit an action is brought, 
lives in another county. Rankin v. Allison, 64—673. 



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56 CLARK'S CODE OF CIVIL PROCEDURE. 

Assigrnment ^^for collection. ** — A voluntary assignment, without coiisifl- 
eration and for the benefit of the assignor, will not authorize the assignee to 
bring suit in a county where neither of the parlies to the instrument reside. 
Abrams v. Cureton, 74 — 523. 

Breach of coTCuant to pay for Improremente. — An action for breach of 

covenant, in not paying for improvements made by mortgagors of real estate, 
must be brought in a county where some of the parties reside. Phillips v. 
Holmes, 71 — 250. 

See, 193. Actions against executors and adtninistrators, 
and upon official bonds. C. €. -P., s. 68 {a). 1868-^9, c. 

258, s. 1. 

AH actions upon oflScial bonds, or against executors and 
administrators in their official capacity, shall be instituted 
in the county where the bonds shall have been given, if the 
principal or any of the sureties on the bond is in the county ; 
if not, then in the plaintiff's county. 

Personal representative. — An administrator or executor most be sued in 
the county in which he took out letters of administration or letters testamentary, 
provided he or any one of his sureties lives in that county, whether he is sued on 
nis bond or simply as administrator or executor. Stanley v. Mason, 69 — i; Foy 
v. Morehead, 69—512; Bidwell v. King, 71 — 287. 

Gaardian bond. — A guardian bond is an official one, within the meaning of 
this section. Cloman v. Staton, 78 — 235. ^ 

Constmciion of will. — An action to construe a will must be brought in 
the county in which the testator was domiciled at his death and in which the will 
was admitted to probate. Devereux v. Devereux, 81 — 12. 

Sec. 194. Actions against foreign corporations ; where and 
by whom brougJU. C. C. jP., s. 361. 1876''7, c 170. 

An action against a corporation created by or under the 
laws of any other state, government or country, may be 
brought in the superior court of any county in which the 
cause of action arose, or in which it usually did business, or 
in which it has property, or in which the plaintiffs, or either 
of them, shall reside, in the following cases : 

(1) By a resident of this state for any cause of action ; 

(2) By a plaintiff, not a resident of this state, when the 
cause of action shall have risen or the subject of the action 
shall be situated within this state. 

Sec. 195. Change of place of trial. C. C. jP., «. 69. B. C, 
c. 31, ss. 115—118; 1870-^1, c. 20, s. 1. 

If the county designated for that purpose, in the sum- 
mons and complaint, be not the proper county, the action 



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CLARK'S CODE OF CIVIL PROCEDURE. 57 

may, notwithstanding, be tried therein, unless the defend- 
ant, before the time of answering expires, demand in writ- 
ing that the trial be had in the proper county, and the place 
of trial be thereupon changed by consent of parties or by 
order of the court. 

Waiyer. — If no objection is taken to the venue in the superior court, it can 
be taken in the supreme court on appeal. Devereux v. Devereux 8i — 12. 

If objection to the venue is not taken by the party entitled to take it, the trial 
can proceed in the county where the action is brought. Cloman v. Staton, 
78—236. 

The objection to the venue must be taken in apt time. If the defendant 
pleads to the merits of the action, he will be deemea to have waived the objec- 
tion. McMinn v. Hamilton, 77 — 300. 

The court may change the place of trial in the following 
cases : 

(1) When the county designated for that purpose is not 
the proper county ; 

Remoyal ex mero tnotu, — If the county is not the proper one, the judge 
may remove the cause ex mero motu, Cloman v. Staton, 78 — 236. 

OnmotioD. — An administrator or executor may move the hearing of an action 
against him to the county in which the bond is filed. Rankin v. Allison, 64 — 673. 

A defendant who has been sued to a wrong county may move either to dis- 
miss or to remove to the proper county. Stanly v. Mason, 69 — i; Jones v. 
Com'rs, 69 — 412. 

A motion to dismiss an action, brought in the wrong county, may be treated 
as a motion to remove. Cloman v. Staton, 78 — 235. 

(2). When the convenience of witnesses and the ends of 
justice would be promoted by the change. 

BemOTal. — A cause must be at issue before it can be removed from one 
county to another for trial. State v. Swepson, 81 — 571. 

(3). When the judge shall have been, at any time, inter- 
ested as party or counsel. When the place of trial is changed, 
all other proceedings shall be had in the county to which 
the place of trial is changed, unless otherwise provided by 
the consent of the parties in writing duly filed, or by order 
of court ; and the papers shall be filed or transferred accord- 
ingly. 

When the jadgre is a partj to the SUit^—When the summons has been 
served and the complaint filed, the case is pending sufficiently to entitle a party 
to remove it to an adjoining judicial district if the presiding judge is a party to 
the suit. Carter v. W. N. C. R. R., 68—346. 



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5? CLARK'S CODE OF CIVIL PROCEDURE. 

Sec, 196, Judges aufharized to remove causes from, one 
county to another, 1879, c, 45, 

In all civil and criminal actions in the superior and crim- 
inal courts, in which it shall be suggested on oath, or by 
affirmation, on behalf of the state, or the traverser of the 
bill of indictment, or of the plaintiff or defendant, that there 
are probable grounds to believe that justice can not be ob- 
tained in the county in which the action shall be pending* 
the judge shall be authorized to order a copy of the record 
of said action to be removed to some adjacent county for 
trial, if he shall be satisfied that a fair trial can not be had 
in said county, after hearing all the testimony which may 
be offered on either side by affidavits. 

Safflcient affidavit. — An affidavit by a party that he can not have a fair and 
impartial trial in the county, owing to the great prejudice against him, and that 
the adverse party is of great influence in the county which he believes will be 
used to his prejudice, is sufficient to justify an order removing the cause. Smith 
v. Greenlee, 3Dev., 387. 

It is not necessary in an affidavit for removal that the belief oi the affiant should 
be stated. It is sufficient if it sets forth the facts on which he grounds his be. 
lief. State v. Seaborn, 4 Dev., 305, overruling State v. Twitty, 2 Hawks, 248- 

RemoYal discretlonarj with the jnd^e. — An application to remove or 
continue a case, the discretion to do either rests with the judge of the superior 
court and can not be reviewed by the supreme court. Slate v. Duncan, 6 
Ire., 98. 

Orders In the cause. — Rules and orders made by consent, after an order tor 
the removal of a cause but before it is removed, are not erroneous. Smith v. 
Greenlee, 3 Dev.. 387. 

See also Comm'rs v. Lemly, 85 — 341. 

Sufficiency of order of removal. — An order of removal directing that "the 
/ria/»hall be removed " is sufficient without directing further that a copy of the 
record oi said cause be removed. State v. Shepherd, 8 Ire., 195. 

Order of removal con ijlusive. — The order of removal is conclusive, and 
the court to which it is removed should proceed with the case, unless it posi- 
tively appears that the order was made contrary to law. Boyden v. Williams, 
84—608. 

Appeal. — Where upon a motion to remove a cause, no facts are stated in 
the affidavit of the applicant as grounds for such removal, the ruling of the 
court below may be reviewed, but where the facts are set forth, their sufficiency 
rests in the discretion of the judge, and his decision upon them is final. Phil- 
lips v. Lentz, 83 — 240. 

Sec, 197 • What requisite to a^uthorize such retnoval. 1879 f 
c, 45, 

No action, whether civil or criminal, shall be so removed, 
unless the aflSdavit shall set forth particularly and in de- 
tail the ground of the application. And it shall be compe- 
tent for the other side to controvert the allegations of fact 



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CLARK'S CODE OF CIVIL PROCEDURE. ^ 59 

in said application, and to offer counter affidavits to that 
end. And the judge shall not order the renooval of any 
such action, unless he shall be satisfied after thorough ex- 
amination of the evidence as aforesaid, that the ends of jus- 
tice demand it. 

Removal before issae Joined. — Semble that a cause can not be removed 
before issue joined. State v. Reid, I D. & B., 377. Decided. State v. Swep- 
son. 81 — 571. Exception to this rule where the presiding judge is a party. 
Carter V. W. N. C. R R., 68—346. 

See notes under preceding section. For decisions under previous statutes, 
see Battle's Revisal, vol. 2, p. 989. 

Sec. 198, On f etnovtU of an action, whttt to be setU with 
transcHpt. R. C, c. 31, s. 118. 1806, c. 694, 8. 12. 1810, 

c. 787. 

When a cause shall be directed to be removed, the clerk 
shall transmit to the court, to which the same is removed, a 
transcript of the record of the case, with the prosecution 
bond, bail bond, and the depositions, and all other written 
evidences filed therein. 

Contradlotorj transcripts* — Where upon the removal of a cause, two con- 
tradictory transcripts of the record are certified, the contradiction can be recon- 
ciled by an inspection of the original record. But where they are not contra- 
dictory, they form but one copy and both may be used by the court. State v. 
Collins, 3 Dev., 117. 

Proper yeriflcation of transcript. — The court to which a cause is removed 
is the sole judge whether the transcript is properly verified, and all other courts 
are bound by its decisions. State v. Duncan, 6 Ire., 236. 

Insertion of affidavit for romoyal* — The affidavit for the removal of a 
cause ought no more to be inserted as a part of the record than one for a contin- 
uance. State V. Barfield, 8 Ire., 344. 

Orders in tlie caose pending remoyal* — Until the transcript is deposited 
the removal is not complete, and subsequent to the order and until such deposit 
of the transcript the clerk of either court may issue subpoenas and commissions 
to take depositions. Com'rs v. Lemly, 85 — 341. 

See also Smith v. Greenlee, 3 Dev., 387. 

Amending Hie transcript* — The court from which a cause has been re- 
moved can supply an omission in the record by making an amendment and send- 
ing a copy of the amended record to the court to which it has been removed. 
State V. Reid, i D. & Bat., 377. 

Defect in transcript of record* — Where there is a defect in the transcript 
of the. record, the proper course is to move, in the county where the record was 
made, to amend it, and have the amended record brought to the county where 
it stands for trial by a certiorari. State v. Swepson, 81 — 571. 



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6o 



CLARK S CODE OF CIVIL PROCEDURE. 



TITLE VI. 

OF THE MANNER OF GOMUENCINO CIVIL 
ACTIONS. 



Section. 

199. Civil actions commenced by 
summons. 

Summons in actions return- 
able to a regular term of 
the superior court. 

Summons returnable. 
202. When the summons is issued 
more than ten days before 
the next succeeding term. 

Summons to be attested. 

Summons in the same ac- 
tion may issue to several 
counties at the same time. 

Sheriff returning that de- 
fendant is not to be found, 
plaintiff may issue alias or 
pluries summons. 

Filing of complaint. 

Answer of defendant. 

Reply to answer. 

Before issuing summons, 
clerk to take undertaking, 
&c. 

How to sue as a pauper; 
how obtained. 

Court may assign counsel. 

No costs or fees recoverable. 

Whar. summons to contain. 

Service of summons. 

Actions against executors 
and administrators. 



200. 



201. 



203. 
204, 



205. 



206. 
207. 
208. 
209. 



210. 

211. 
212. 
213. 
214. 
215. 



Section. 

216. Notice of no personal claim. 

217. Manner of service of sum- 

mons. 

218. Service by publication. 

219. Manner of publication. 

220. Defendant allowed to de- 

fend before and after judg- 
ment. 

221. Actions for foreclosure of 

mortgage. 

222. Joint and several debtors; 

partners. 

223. Parties not summoned in 

action on joint contract, 
may be sunmioned after 
judgment. 

224. Party summoned may an- 

swer or defend. 

225. Subsequent pleadings and 

proceedings same as in 
action. 

226. Answer and reply to be ver- 

ified as in an action. 

227. When service complete. 

228. Proof of service. 

229. Jurisdiction; appearance; 

notice of lis pendens. 

230. Parties may apply for relief 

to the superior court in va- 
cation or in term time. 



Civil actions commenced by summons. C C P., 



Sec. 199. 
s. 70. 

Civil actions shall be commenced by issuing a summons. 

No sommons necessary. — No summons need issue in cases coming under 
§ ^ 567 and 570, post. Hervey v. Edmunds, 68 — 243. 

Defect in name of defendant. — A defect in the name of the defendant is 
cured by a judgment of default rendered against him. Clawson v. Wolf, 77 — 100. 

Seryice of summons notice of aetion.^The service of summons is notice 
of an action, and the defendant is bound to take notice of all subsequent proceed- 
ings therein. Sparrow v. Davidson College, 77-35 ; University v. Lassiter, 
83-38. 

Action begrnn by summons* — An order, granting an injunction and direct- 
ing summons to issue, is irregular, since the order can not be applied for until the 



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CLARK'S CODE OF CIVIL PROCEDURE. 6l 

action is instituted by the issue of a summons. Patrick v. Joyner,- 63 — 573;^ 
McArthur v. McEachin, 64 — 72. 

Irregularity of not issoing siiinnions walred.— The ct.urt will not notice 
such irregularity, however, unless objection is made by the defendant betore 
answering. Heilig v. Stokes, 63 — 612 : Moore v. N. C. R. R., 67 — 209 ; Mid- 
dleton V. Duffy, 73 — 72. Contra^ Etheridge v. Woodley, 83 — 11. 

Special proceedings. — Proceedings for dower, partition and year's allow- 
ance and any other proceedings that under the old system could be commenced 
by petition, or by motion upon notice, are special proceedings and not civil 
actions. Tate v. Powe, 64 — 644. • 

Action to recover land* — An action to recover land is a civil cution^ and 
the summons is returnable to term. Woodley v. Gilliam, 64 — 649. 

RemOTal or SUbstitntion of trnstee* — SembU, that a proceeding to remove 
or substitute a trustee is a civil action, though in jurisdiction of the probate 
court. Guion v. Melvin, 69 — 242. 

Enforcement of equitable right. — The enforcement of an equitable right, 
as that of subrogation, can only be maintained by a civil action. All civil actions 
must be commenced by a summons. Calvert v. Peeble, 82 — 334. 

The proper method of enforcing judgments nisi is by an action or by a special 
proceeding commenced by summons. Thompson v. Berry, 64 — 79; Jones v. 
Gupton, 65 — ^48. (This is changed by statute. See 446, post,) 

Sec. 200. Summons in actions returnable to a regular term 
of the 8U2>erior court. JSTO-'T, c Sit^ «. 1. 

The summons shall run in the name of the state, be 
signed by the clerk of the superior court having jurisdic- 
tion to try the action, and shall be directed to the sheriff or 
other proper oflBcer of the county in which the defendant, 
or one or more of the defendants, resides or may be found. 
It shall be returnable to the regular term of the superior 
court of the county where the plaintiff, or one or more of 
them, or the defendant, or one or more of them, resides, 
and from which it issued ; and shall command the sheriff, 
or other proper oflScer, to summon the defendant, or defend- 
ants, to appear at the next ensuing term of the superior 
court and answer the complaint of the plaintiff, and shall 
be dated on the day of its issue. The oflBcer to whom the 
summons is addressed shall note on it the day of its deliv- 
ery to him, and shall execute it at least ten days before the 
beginning of the term to which it shall be returnable, and 
shall return it on the first day of the term. 

Officer to note date of receipt of summons. — The requirement that the 
officer shall note thereon the date of its delivery to him does not apply to final 
process. Wyche v. Newsom, 87 — 144. 

Fees must be paid or tendered* — A sheriff is not compelled to execute a 
summons until his fees are paid, but he is required to make return of all process 



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62 CLARK'S CODE OF aVIL PROCEDURE, 

coming into his hands, and is liable for any failuse to do so. Jones v, Gupton^ 
*bs — 48; Johnson v. Kennedy, 70 — 435, 

Auiendinent of summons. — Where the summons was made retnrnable btfore 
the clerk,^ it is competent for the court to amend it after service by making it re- 
turnable to the term, Thomas v, Womack, 64 — 657; Cheatham v. Crews, 
81—343. 

Ten days^ how computed.— In computing the ten days before the begin- 
ning of term required for the service of the summons, it is a rule settkd by long; 
practice, to include the day of service and exclude the return day, or e convcrso. 
Taylor V, Harris, 82 — 25/ • I 

Act suspending original C* C. P. — ^The " act suspending the Code of Civi 
Procedure in certain cases," is not unconstitutional in requiring writs in civil 
CJises to be " returned to the re^rular term of the superior court," &c., instead of 
the clerk's office. McAdoo v. Ben bow, 63 — 461. 

Civil actions must Cby the act of 1868—9, chapter 76! be issued by the clerk,, 
and made returnable in tenn time. McArlhur v. McEachin, 64 — 72. 

Under the ** act suspending the Code of Civil Procedure in certain cases," the 
summons in a civil action is to be returned to the term : Therefore^ aji action in 
which the summons was returnable before the clerk, upon demurrer by the de- 
fendant, will be dismissed; and a provisioifal warrant of attachment, (issued be- 
cause defendant was removing his goods, &c.), although properly returnable, will 
follow the fate of theaction. Jones v. McClair, 64 — -125. 

Summons issued after the passage of this act, returnable before the clerk, is- 
not void but irregular, and may be set aside on motion. Woody v. Jordan, 
69 — 189. 

Construed — The summons must be issued by the clerk and made return- 
able in term time. McArthur v. McEachin, 64 — 72. 

Summons issued by clerk of one superior court returnable to superior 
court of another county. — The clerk of the superior court of one county 
has no right to issue a summons returnable to tne superior court of another 
county ; but irregularity of service is waived by an appearance and answer in 
bar. Moore v. N. C. R. R. Co., 67 — 209 ; Howerton v. Tate, 66 — ^431. 

When summons not necessary. — Sections 315 and 325 of the Code, 
(8§ 567 and Sl^^ post), are still in force, notwithstanding the act of 1868-9, 
chapter 76, suspending the Code in certain cases, and controversies may still be 
submitted without action, and judgment confessed according to them. Hervey 
V. Edmunds. 68 — 243. 

Sec. 201. Summons returnable. 1S70'*7, c 85, 8. 2. 

If any summons shall be issued within less than ten 
days of the beginning of the next term of the superior court 
for the county in which it is issued, it shall be made re- 
turnable to the second term of said court next after the 
date of its issuing, and shall be executed and returned by 
the proper officer accordingly. 

Sec. 202. Wheti tlie summons is issued more than ten days 
before tfie next succeeding terin, 187 6-' 7, c. 83, s. 3. 

When the summons shall be issued more than ten days 
before the next succeeding term of the superior court of the 
county to which it is returnable, and shall be executed by 



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'CLARK'S CODE OF CIVIL PROCEDUKE. 63 

the proper officer within less than ten days of said term, it 
shall be returned as if executed in proper time, and the 
case placed on th^e summons docket and continued to the 
next succeeding term, at which term it shall be treated in all 
respects as if said next succeeding term had been the return 
term thereof: Provided, that the parties to the action may, 
by agreement, make up the pleadings at the term to which 
the summons is returnable: Provided further^ that nothing 
herein contained shall be construed to release or discharge 
the sheriff or other officer from any liability he may incur 
by failing to execute the summons in due time. 

Coroner's deputy. — Process issued to a coroner under this section can be 
served by deputy. Yeargin v, Siler, 83 — 348* 

Sec. 203. ^H mm mis to he attested. 1876-^7 , c. 85 y s. 4. 

Every summons addressed to the sheriff or other officer 

of any county, other than that from which it issued, shall 

be attested by the seal of the court ; but when it shall be 

addressed to the sheriff or other officer of the county in 

which it issued it shall not be attested by the seal of the 

eourt. 

Sninmons issued to another county. — When the writ issues to another 
county, it is void without the seal, and confers no power upon the sheriff of 
such county to act. Taylor v. Taylor, 83 — 116; Folk v. Howard, 72 — 527. 

8ec^ 204. Sum^mons in th^ same actimi may issue to sev^ 
eral counties at the same time. B. C\, c. 31 , s. 44, 1789^ 
€. 314, 8S. 1, 2. 1831 f c. 14, s. 2. 

The plaintiff may issue writs of summons, directed to the 
sheriff of any county where a defendant is most likely to 
be found, noting on each summons that it is issued in the 
same action ; and when the said writs are returned they 
shall be docketed as if only one had issued, and if any de- 
fendants shall not be served with such process the same 
proceeding shall be had as in other cases of similar process 
not executed. 

Sec. 205, Sheriff returning that defendant is not to be 
found, plaintiff may issue alias or pluries summons, M* 
a, c. 31, s, 52. 1777, c 115, ss. 23, 71. 

When the sheriff shall return in a civil action or special 



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64 CLARK'S CODE OF CIVIL PROCEDURE. 

proceeding that the defendant is not to be found in his 
county, thfe plaintiff may sue out an cdiaa or pluries sum 
mons, returnable in the same manner as original process. 

Sec. 200. Filing of complaint. 1808-^9, c. 76, ». Sy 1870-^1, 
c. 42, H. 1. 

The plaintiff shall file his complaint in the clerk's office 
on or before the third day of the term to which the action 
is brought, otherwise the suit may, on motion, be dismissed 
at the cost of the plaintiff. 

Time of flllng eomplalnt extended. — The courts have an inherent discre- 
tionaj-y power to amend pleadings or to allow them .to be filed at any time, un- 
less prohibited by statute or unless vested rights are interfered with. Gilchrist 
V. Kitchen, 86—20; Brendle v. Heron, 68 — 496. 

Sembie^ that when permission is given the last day of the term to file an 
amended complaint, a motion to strike out the judgment, taken for want of an 
answer at that term, should be granted. Ellington v. Wicker, 87 — 14. 

Entrj of '' time to file pleadingtu." — An entry of time to demur or answer 
does not extend the time to the trial term. Boddie v. Woodard, 83 — 2. 

Dismissal of complaint. — It is error to dismiss a complaint because the de- 
fendants are summoned to answer A and B, and the complaint is in the name 
of A, B and others. Wilson v. Moore, 82 — 558. 

Non-sait taken by plafntiflfe.' — Entry of non-suit, and " judgment against 
plaintiffs for costs " is not a retraxit. Wharton v. Currituck, 52 — 11. 

A plaintifif who has gotten possession of property under claim and delivery 
can not take a non-suit and cut off the defendant's pleas. Manix v. Howard, 
82 — 125. 

When a counterclaim is set up by the defendant, the plaintiff can not take a 
non-suit. Purnffll v. Vaughan, 80^46. 

• This provision does not prevent the plaintiff from taking a non-suit at his 
own election wherever only a judgment for costs can be rendered against him ; 
when the answer would justify an affirmative relief to the defendant he can not. 
McKesson v. Mendenhall, 64 — 502. 

Defendant's motion to non-sait th^ plaintiif. — A motion for non-suit 

can not be made a substitute for demurrer. If a complaint does not show a 
cause of action the defendant should demur. He has only a right to move for 
non-suit under the provisions of this section. Andrews v. Pritchett, 66 — 387, 

Sec. 207. Answer of defendant. 1870-'l, c. 42, 8. 4. 

The defendant shall appear and demur, or answer, at the 
same term to which the summons shall be returnable, oth- 
erwise the plaintiff may have judgment by default. 

Befnsal to allow answer to be filed at trial term.— The refusal of the 
judge to allow an answer to be filed at the trial term is a matter of discretion 
and not reviewable. Reese v. Jones, 84 — 597; Boddie v. Woodard. 83 — 2. 

Sham answer. — A sham answer is false in fact. An irrelevant or frivolous 
one has no substantial relation to the controversy, and presents no defence to 
the action, though its contents may be true. When sucn are filed they may be 
stricken out and the plaintiff have judgment by default. Howell v. Ferguson, 
87—113. 



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CLARK'S CODE OF CIVll PROCEDURE. 65 

Sec. 208. Reply to answer, issue to stand for trial. 1870-^1, 
c. 42, s. 5. 

The plaintiflf shall join issue on the demurrer or reply to 
the answer at the same term to which such demurrer or an- 
swer may be 61ed ; and the issues, whether of law or of fact, 
shall stand for trial at the next term succeeding the term 
at which the pleadings are completed. 

Time to plead. — An entry on docket "complaint filed, time to demur or 
answer," does not extend the time for pleading lo the trial term, and the refu- 
sal of the presiding judge, in his discretion, to allow pleadings to be filed at that 
term, is not appealable. Boddie v. Woodard, 83 — 2. 

Trial of issues postponed by consent, — Parties may, by consent, postpone 
a trial of issues of law, to vacation. liarrell v. Peebles, 79 — 26. 

Sec. 209. Before issuing the summons clerk to take under" 
taking, &c. JR. €., c. 31, s. 40. C. C. P.,s. 71. 1868''9, c. 
277, s. IS. 

Before issuing the summons, the clerk shall require of 
the plaintifiF, either to give an undertaking with suflBcient 
surety in the sum of two hundred dollars with the condi- 
tion that the same shall be void if the plaintiff shall pay 
the defendant all such costs as the defendant shall recover 
of him in the action ; or to deposit a like sum with him 
as a security to the defendant for such costs ; and in case of 
such deposit he shall give to the plaintiff and to the defend- 
ant a certificate to that effect; or to file with him a written 
authority from some judge or clerk of a superior court, au- 
thorizing the plaintiff to sue as a pauper. 

Surety on prosecntion bond* — A surety on the prQsecution bond is not lia- 
ble to his principal for costs, nor to any one for any part of the plaintiff 's costs. 
Hallman v. Dellinger, 84 — i; Swain v. McCullock, 75 — 495. 

Actions in the nature of a bill of review. — This section applies to actions 

in the nature of a bill of review. Matthews v. Joyce, 85—258. 

Former practice as to dismissing for want of a prosecution bond.— 

After the plaintiff has been allowed to go on and prepare his case for 
trial, the court will not, on motion by defendant, dismiss peremptorily for want 
of a prosecution bond, but will permit the plaintiff then to prepare and filesuch 
a bond. Brittain v. Howell, 2 D. & B., 107; Russell v. Saunders, 3 Jon., 432. 

Sec. 210. Leave to sue as a pauper, how obtained. C. C. B., 
s. 72. 1868-^9, c. 96, s. 1. 

Any judge or clerk of the superior court may authorize 

any person to sue as a pauper in their respective courts, 

when he shall prove, by one or more witnesses, that he has 
9 



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66 CLARK'S CODE" OF CIVIL PROCEDURE. 

a good cause of action, and shall ujake aflSdavit that he is 
unable to conaply with the last section. 

Notice. — Notice of application to adverse party is not required. Deal v. 
Palmer, 68 — 215. 

Nou-rosident. — A non-resident may sue as a pauper in the courts of this 
slate. Porter v. Jones, 68 — 320. 

Affidavit of applicant competent. — The applicant may prove his cause of 
action by his own oath. Sumner v. Candler, 74 — 265. 

Certificate of connsel. — The certificate of counsel is sufficient proof of **« 
good cause of action,'* Miazza v. Calloway, 74 — 31. 

Either the jndgre or clerk may grant leave. — Either the judge or the 
clerk of a superior court may grant leave to sue as a pauper therein ; the clerk 
may grant such leave in the probate court and a justice of the peace in his own 
court. Rowark v. Gaston, 67 — 291. 

Guardian can sne \n forma pauperis. — An adult or infant, suing by 
his guardian, can obtain leave to sue in forma pauperis by complying with the 
provisions of this section. Brendle v. Heron, 68 — 496. 

Objections to affidavit waived. — Where suit is brought in forma pauperis^ 

and the answer is filed and the case continued on docket from term to term for 

three years, the action can not be dismissed for insufficiency of the affidavit, 

■ without notice of the defendant's motion given to the plaintiff. SembU, that 

the objection has been waived by the defendant. Com v. Stepp, 84 — 599. 

Sec, 211. Court may assign counsel. 1868-^9, c. 90, s. 2* 

The court to which such summons is made returnable 
may, at its discretion, assign to the person suing as a pauper, 
learned counsel, who shall prosecute his action. 

Sec. 212. No costs or fees recoveroMe. 1868-^9, c. 96, s. 3. 

Whenever any person shall sue as a pauper, no officer 
shall require of him any fee, and he shall recover no costs. 

If snecessftll^ recoyers no costs. — Wherever one sues in forma pauperis 
110 officer shall require of him any fees, and, if successful in his suit, he shall 
recover no costs. Booshee v. Surles. 85 — 90; Hall v. Younts, 87 — 285. 

Witnesses summoned bj the pauper mast be paid bj him.— Witnesses 

summoned by one suing in forma pauperis are entitled to their costs for attend- 
ance. Officers of the court only are included in the order authorized by the 
act. Morris v. Rippy, 4 Jones, 533. 

Sec. 213. What svmtnons to contain. C. C. JP., s. 74. 
187G''7, c. 241, s. 1. 

There shall be inserted in the summons a notice in sub- 
stance as follows: that if the defendant shall fail to answer 
the complaint within the time specified the plaintiff will 
apply to the court for the relief demanded in the complaint. 

Amendment of snmmons. — Process may be amended in many cases, but 
not where third persons have acquired rights which may be prejudiced thereby. 
Bank of Cape Fear v. Williamson, 2 Ired., 14?; Smith v. Low, 2 Ired., 457; 
Phillips V. Holland, 78—31. 



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CLARK'S CODE OF CIVIL PROCEDURE. 6/ 

Irregular process may be amended, but is no protection to the plaintiff or offi- 
cer for acts done under it before amendment. Woody v. Jordan, 69 — 1S9. 

Sammons irregnlAI* ^^^ not void. — Summons returnable at a day speci- 
fied, before the clerk, since the act ot i868-'69, ch. 76, is not void but merely 
irregular. Woody v. Jordan, 69 — 189. 

filcc. 214. Service of suntmons, 1876-^7 • c 241, s. 2. 

The summons shall be served in all cases, except as here- 
inafter provided, by the sheriff or other oflBcer reading the 
same to the party or parties named as defendant, and such 
reading shall be a legal and sufficient service. 

Appearance Id the action* — An appearance in an acton dispenses with ne- 
cessity of process. Wheeler v. Cobb, 75 — 21; State v. Jones, 88 — 683; Heilig v. 
Stokes, 63—612; Moore v. N. C. R. R., 67 — 209; Middleton v. Duffy, 73—72. 
Contra Etheridge v. Woodley, 83 — ii. 

Serflce of process on Sunday* — TlTe service of any process on Sunday is 
unlawful. Devries v. Summit, 86 — 126. 

Serflce by attaclinient* — When the summons is served by an attachment 
on property (of a non-resident) the lien so acquired is prior to a subsequent 
levy by one who has already obtained judgment. McMillan v. Parsons; 7 Jon.. 
163. 

But the requirements (in such a case) of sees. 349 and 356, post^ must be 
complied with. Deaver v. Keith, Phil., 428. 

Sammons not served. — Process not served is exhausted on the day fixed for 
its return, and the action in law is then discontinued, unless an oHas is then 
ordered. Webster v. Laws, 86 — 178; Fulbright v. Tritt, 2 D. & B., 491; Gov- 
ernor V. Welch, 3 Ire., 249: Hanna v. Ingram, 8 Jon., 55; Etheridge v. Wood- 
ley, 83— n. 

Acceptance of serfice* — The acceptance of service by a party is equivalent 
to a service of summons upon him. Johnston v. Futreli, 86--- 122. 

The time and place of acceptance need not be endorsed on a summons re- 
turnable to the term. Nicholson v. Cox, 83 — 44. 

Acceptance of seryice by a married womau.—A married woman can ac- 
cept service of summons. Nicholson v. Cox, 83 — 44. 

Acceptance of service bj infant* — An infant can not accept service. Bass 
V. Bass, 78—374. 

Defective service by imblicatlon.— 5<rw/5/.p, that a defective service by 
publication may be remedied by an order for re-publication. Price v. Cox, 
83—261. 

Sec. 215. Actions against executors and administrators. 
1876''7, c. 241, s. 6. 

In addition to the remedy by special proceeding, as pro- 
vided by law, actions against executors, administrators, 
collectors and guardians may be brought originally to the 
superior court at term time; and in all such cases it shall 
be competent to the court in which said actions shall be 
pending to order an account to be taken by such person 
or persons as said court may designate, and to adjudge the 



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68 glark's code of civil procedure. 

application or distribution of the fund ascertained, or to 
grant other relief, as the nature of the case may require. 

Concurrent Jnrlsdieiion. — The superior courts have concurrent jurisdiction 
with the probate court of actions to compel an administrator to account, and 
of other actions of like nature. Haywood v. Haywood, 79 — 42; Bratton v. 
Davidson, 79 — 423; Pegram v. Armstrong, 82 — 326. 

Sec, 210, Notice of no personal claitn, €, C, B.^s, 81. 

In case of a defendant, against whom no personal claim 
is made, the plaintiff may deliver to such defendant, with 
the summons, a notice, subscribed by the plaintiff or his 
attorney, setting forth the general object of the action, a 
brief description of the property affected by it, if it affects 
real or personal property, Q.nd that no personal claim is 
made against such defendant. If a defendant on whom 
such notice is served unreasonably defends the action, he 
shall pay costs to the plaintiff. 

Sec, 217. Manner of ^service of summons, ۥ C, P., s, 82 
1874''S, c. 168, s. 1, 

The summons shall be served by delivering a copy thereof 
in the following cases : 

(1) If the action be against a corporation, to the presi- 
dent or other head of the corporation, secretary, cashier, 
treasurer, director, managing or local agent thereof: PrO' 
videdj that any person receiving or collecting moneys within 
this state for, or on behalf of, any corporation of this or any 
other state or government, shall be deemed a local agent 
for the purpose of this section ; but such service can be 
made in respect to a foreign corporation only when it has 
property within this state, or the cause of action arose 
therein, or when the plaintiff resides in the state, or when 
such service can be made within the state personally upon 
the president, treasurer or secretary thereof. 

Serrice on local agrent of corporation.— The summons in an action 

against a foreign corporation may be served either upon a local or general agent. 
Jones v. Ins. Co., 88—499; Katzenstein v. R. & G. R. R. Co., 78—286. 

As to former law, see Cunningham v. So. Express Co., 67 — 425. 

Quere as to whether, under the charter of the N. C. R. R. Co., service upon 
one of its local agents would be sufficient. Wagoner v. N. C. R. R. Co., 5 
Jones, 367. 



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CLARK'S CODE OF CIVIL PROCEDURE. 69 

Copy of SOmtllODH. — Summons in civil actions tefore a magistrate does not 
require to be executed by leaving a copy with the defendant. Kirkland v. Ko- 
gan, 65—144. 

Note. — A copy need not now be left with any defendant save in the cases re- 
cited in this section. 

(2). If against a minor under the age of fourteen years, 
to suci) minor personally, and also to his father, mother, 
or guardian, or if there be none within the state, tl)en to 
any person having the care and control of such minor, or 
with whom he shall reside, or in whose service he shall be 
employed. 

Senrice on gaardian* — The general guardian of infant defendants is the 
proper person upon whom service of process against .such infants should be 
made. Chambers v. Penland, 78 — 53. 

SerTlce on infant. — The summons must be served on the infant personally 
when he has no general or testamentary guardian, and a guardian ad litem ap- 
pointed, upon whom the summons will then be served. Moore v. Gidney, 75 — 34; 
Allen V. Shields, 72 — 504. 

Service on gaardian ad litem.— The summons must be served on guar- 
dian ad litem, GuUey v. Macey, 81 — 356; Moore v. Gidney, 75 — 34. 

(3). If against a person judicially declared to be of un- 
sound mind, or incapable of conducting his own affairs in 
consequence of habitual drunketiness, and for whom a com- 
mittee or guardian has been appointed, to such committee 
and to the defendant personally. 

Service upon a lunatic. — Where the action is against a lunatic, the sum- 
mons shoulcf be served both upon the lunatic and also upon his guardian. 
Should such guardian fail to defend the action, semble^ that a guardian ad litem 
may be appointed. McAden v. Hooker, 73 — 24. 

Sec. 218. Service by publication. C. C. P., s. 83. 

Where the person on whom the service of the summons 
is to be made, can not, after due diligence, be found within 
the state, and that fact appears by affidavit to the satisfac- 
tion of the court or to a judge thereof, and it in like man- 
ner appears that a cause of action exists against the defend- 
ant in respect to whom service is to be made, or that he is 
a proper party to an action relating to real property in this 
state, such court or judge may grant an order that the ser- 
vice be made by publication of a notice in either of the fol- 
lowing cases: 

(1). Where the defendant is a foreign corporation, and 



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70 CLARK S CODE OF CIVIL PROCEDURE. 

has property within the state, or the cause of action arose 
therein. 

Affidavit* — Everything necessary to dispense with personal service of the 
summons must appear by affidavit. Wheeler v, Cobb, 75 — 21 ; Faulk v. Smith, 
84--501. 

Affidarit by agent* — The affidavit ean be made by an agent or attorney. 
Weaver v. Roberts, 84 — ^493. 

Amendtnent of affidavit* — The court can permit an amendment of the 
printer's affidavit, to show when the publication began. Weaver v. Roberts, 
84—493. 

If affidavit for publication is deficient, it is error to dismiss. An amendment 
should be allowed. Branch v. Frank, 81 — 180. 

Semble, that a defective service by publication can be remedied by an order 
for re-publication. Price v. Cox, 83 — 261. 

(2). Where the defendant, being a resident of this state, 
has departed therefrom, with intent to defraud his credit- 
ors, or to avoid the service of a summons, or keeps himself 
concealed therein with a like intent. 

(3). Where he is not a resident of this state, but has prop- 
erty therein, and the court has jurisdiction of the subject 
of the action. 

Insafficient affidavits* — An affidavit which states that the defendant is a 
*' non-resident of this state," but does not* state that he *' has property within 
the same," is not sufficient to justify a service by publication. Spiers v. Hal- 
stead, 71 — 209; Windley v. Bradway, 77 — 333. 

The requirements of the statute must be strictly complied with, and an affi- 
davit is fatally defective which does not state that the person on whom the 
summons is to be served cannot, after due diligence, be found in the state. 
Wheeler v. Cobb, 75 — 2i. 

Serrice apon partners by pnblication* — Service of summons by publica- 
tion upon two copartners, who are non-residents, will not sustain a judgment 
against a third partner who is a resident of the state. Pender v. Griffin, 
72 — 270. 

(4). Where the subject of the action is real or personal 
property in this state, and the defendant has, or claims, a 
lien or interest, actual or contingent, therein, or the relief 
demanded consists wholly or partly in excluding the de- 
fendant from any lien or interest therein. 

(5). Where the action is for divorce, and in all eases where 
publication is made, the complaint must be filed before the 
expiration of the time of publication ordered. 

In divorce, if it appear by affidavit that the defendant is a non-resident, the 
summons can be served by publication. King v. King, 84 — 32. 



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CLARK'S CODE OF CIVIL PROCEDURE. J I 

Sec. 219. Manner of ptMicntion. C. C. JP., a. 84. 1876-'7, 
c. 241 f s. 3. 

The order must direct the publication in any one or two 
newspapers, to be designated as most likely to give notice 
to the person to be served, and for such length of time as 
may be deemed reasonable, not less than once a week for 
six weeks, a notice, giving the title of the action, the purpose 
of the same, and requiring the defendant to appear and an- 
swer or demur to the complaint at a time and place therein 
mentioned ; and no publication of the summons, nor mail- 
ing of the summons and complaint, shall be deemed nec- 
essary. 

Leng^l of time* — The publication of the summons for /our weeks is insuf- 
ficient. Burwell v. Lafferty, 76 — 383. 

Defectire poblicaUon* — SembU^ that a defective service by publication 
may be remedied by an order for re-publication. Trice v. Cox, 83 — 261. 

See. 220. Defendant aUotved to defend before and after 
judgment. C. C. JP., 8. 85. 

The defendant against whom publication is ordered, or 
his representatives, on application and sufficient cause 
shown at any time before judgment, must be allowed to de- 
fend the action ; and, except in an action for divorce, the 
defendant against whom publication is ordered, or his rep- 
resentatives, may in like manner, upon good cause shown, 
be allowed to defend after judgment, or at any time within 
one year after notice thereof, and within five years after its 
rendition, on such terms as may be just ; and if the defence 
be successful, and the judgment or any part thereof shall 
have been collected, or otherwise enforced, such restitution 
may thereupon be compelled as the court may direct; but 
title to property sold under such judgment to a purchaser 
in good faith shall not be thereby affected. 

The superior court Jad{^ most find the facts.— Upon an application for 
leave to defend under this section, the judge of the superior court must find the 
facts upon which the application is based, in order that the judgment, as to the 
sufficiency of the cause shown may be reviewed. Utley v. Peters, 72 — 525. 

See. 221. Actions fof foreclosure of mortgage. C. C. JP., a. 
80. 

In actions for the foreclosure of mortgages on real estate, 

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72 CLARK'S CODE OF CIVIL PROCEDURE. 

if any party having any interest in, or lien upon, such 
mortgaged premises is unknown to the plaintiflf, and the 
residence of such party can not, with reasonable diligence, 
be ascertained by him, and such fact shall be made to ap- 
pear by affidavit to the court, such court may grant an 
order that a notice be served on. such unknown party by 
publishing for six weeks, once in each week successively, in 
a newspaper printed in the county where the premises lie, 
if there be any ; if not, then in some newspaper published 
in Raleigh, which publication shall be equivalent to a per- 
sonal service on such unknown party. 

Married woman necessary party* — A married woman who joins her hus- 
band in executing a mortgage is a necessary party in proceedings to foreclose. 
Nimrock v. Scanlin, 87 — 119. 

Sec, 222. Joint and several debtors ; partners. C. C P., s. 

87. 

Where the action is against two or more defendants, and 
the summons is served on one or more of them, but not on 
all of them, the plaintiff may proceed as follows : 

(I). If the action be against defendants jointly indebted 
upon contract, he may proceed against the defendants served, 
unless the court otherwise direct, and if he recover judg- 
ment it may be entered against all the defendants thus 
jointly indebted, so far only as that it may be enforced 
against the joint property of all and the separate property 
of the defendants served, and, if they are subject to arrest, 
against the persons of the defendants served ; or, 

(2). If the action be against defendants severally liable, 
he may proceed against the defendants served, in the same 
manner as if they were the only defendants; 

(3). If all the defendants have been served, judgment 
may be taken against any or either of them severally, when 
the plaintiff would be entitled to judgment against such de 
fendant or defendants if the action had been against them 
or any of them alone ; 

(4). If the name of one or more partners shall, for any 
cause, have been omitted in any action in which judg- 



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CLARK'S CODE OF CIVIL PROCEDURE. 73 

iDeDi (^ball have parsed against the defendants named in 
the summons, and such omission shall not have been 
pleaded in such action, the plaintiff, in case the judgment 
therein shall remain unsalisfitd, may by action recover of 
such partner fei»arately, upon proving his joint liability, 
notwithstanding he may not have been named in the orig- 
inal action ; but the plaintiff shall have satisfaction of only 
one judgment rendered for the same cause of action. 

Senrlce on some of the defendants. — Where the action is against two or 
more defendants, and the summons is served on one or more, the plaintiff may 
proceed as above directed. Merwin v. Ballard, 65 — 168; Navassa Guano Co. 
V. Willard, 73 — 521. 

See also § § 185, 186, and notes ante. 

Sec. 223. Farties net summoned in €ictian, an Joint con- 
tract, may be summoned after judgment* C. €• P., ». 318* 
C. C.r.,ss. 87,318. 

When a judgment shall be recovered against one or more 
of several persons jointly indebted upon a contract by pro- 
ceeding, as provided in the preceding section, those who 
were not originally summoned to answer th^ complaint 
may be summoned to show cause why they should not be 
bound by the judgment, in the same manner as if they bad 
been originally summoned. 

Wairerofprefiamption of payment.— A judgment suffered by one joint 
obligor on a bond executed before 1868 does not waive the presumption of pay- 
ment as to the other obligor. Lane v. Richardson, 79 — 159, 

Htatnte of limitations* — Where a judgment is obtained against a firm upon 
a bill of exchange, but a secret partner inihe firm is not joined as defendant, and 
the plaintiff, more than three years after ihe cause of action accrued, discovers 
that there was a secret partner, action against such secret partner i^ barred by 
the statute of limitations. Navassa Guano Co. v. Willard, 73 — 521. 

Proceedings by Jndgmeut creditor against tbe heirs and deTisees*— 

Where there is unreasonable delay in settling an estate, a judgment creditor 
can enforce his lien by a direct proceeding against the heirs or devisees, after 
three years from letters granted, to which the personal representative must be 
made a party. Mauney v. Holmes, 87 — ^428. 

Sec. 224, J^arty summoned may answer or defend. C. C. 

jL.f S. 3^^. 

Any party so summoned may answer within the time 
specified, denying the judgment or setting up any defence 
thereto which may have arisen subsequently^to such judg- 
ment; and may make any defence which he might have 

10 

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74 CLARK'S CODE OF CIVIL PROCEDURE, 

made to the action if the summons bad been served on hioi 
at the time when the same was originally commenced and 
such defence had been then interposed to such action. 

Ste notes under preceding section. 

Sec, 225, Subsequent pleadingn and proceedings same a$f 
in actian. C. C. r,, s, 323, 

The party issuing the summons may demur or reply to 
the answer, and the party summoned may demur to the re- 
ply ; and the issues may be tried and judgment may be 
given in the same manner as in an action, and enforced by 
execution, if necessary. 

Sec, 226, Answer and reply to he verified as in action. Cm 
C. r., s. 324. 

The answer and reply shall be verified in the like cases 
and manner and be subject to the same rules as the ansiwer 
and reply in an action 
Sec, 227* When service complete, C C -P., s, 88^ 

In the cases in which service by publication is allowed, 
the summons shall be deemed served at the expiration of 
the time prescribed by the order of publication, and the 
party shall then be in court. 

Sec, 228. Proof of service. C. C. r., s. 89, 

Proof of the service of the summons or notice must be : 
(1). By the certificate of the sheriff^ or other proper officer ; 
(2). In case of publication, the affidavit of the printer, or 
of his foreman or principal clerk, showing the same ; 
(3). The written admission of the defendant. 

Personal service* — 'Personal serrice of summons or a written admission of 
such service is necessary to constitute a ca se in courj . A copy left with defend- 
ant's wite is not serVtce, TiOr will proof of its delivery to him make it sufficient. 
Bank of Charlotte v. Wilson, 80—200. 

Acceptance of senrlce. — A married woman can accept service. The time 
and place of acceptance need not be endorsed on a summons returnable to 
term. Nicholson v. Cox, 83 — 44. 

Admission «f service. — The admission must be in writine, verified and 
identified, so as to satisfy the court that it is signed by the defendant or with 
his assent. •Middleton v. Duffy, 73 — 72. 

Serrice by pobllcatlon.— Where the summons is served by publication, an 
adjudication that the summons has been served is necessary before a valid judg- 
ment can be rendered. Hyman v. Jamigan, 65—96. 

.S/-^ notes under § g 213 and 217, ante. 



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-CLARK S CODE OT CIVIL PROCEDURE. 75 

Sec 229» Jurisdiction^ appearance, notice of lis pendens^ 
C. C. -P., s. 90. 

From the time of the service of the summons in a civil 
action, or the allowance of a provisional remedy, the court 
.s deemed to have acquired jurisdiction, and to have con- 
trol of all subsequent proceedings. A voluntary appear- 
ance of a defendant is equivalent to personal service of the 
summons upon him. In an action afieciing the title to real 
property, the plaintiff, at the tira« of filing the complaint, 
or at any time afterwards, or whenever a warrant of attach- 
ment shall be issued, or at any time afterwards, the plain- 
tiflF, or a defendant when he sets up an affirmative cause of 
action in his answer and demands substantive relief, at the 
time of filing his answer, or at any time afterwards, if the 
same be intended to afiect real estate, may file with the 
clerk of each county in which the property is situated, a 
notice of the pendency of the action, containing the names 
of the parties, the object of the action, and the description 
of the property in that county affected thereby ; and if the 
action be for the foreclosure of a mortgage, such notice must 
be filed twenty days before judgment, and must contain the 
date of the mortgage, the parties thereto, and the time and 
place of registering the same. From the time of filing only, 
shall the pendency of the action be constructive notice to a 
purchaser or encumbrancer of the property affected thereby ; 
and every person whose conveyance or incumbrance is sub- 
sequently executed or subsequently registered shall be 
deemed a subsequent purchaser or incumbrancer, and shall 
be bound by all proceedings taken after the filing of such 
notice; to the same extent as if he were made a party to 
the action. For the purposes of this section an action shall 
be deemed to be pending from the time of filing such no- 
tice : Provided, that such notice shall be of no avail unless 
it shall be followed by the first publication of notice of the 
summons or by an order therefor, or by the personal service 
on the defendant within sixty days after such filing. And 
the court in which the said action was commenced may, in 



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y6 CLARK'S CODE OF CIVIL PROCEDURE. 

its discretion, at any tinae after the action shall be settled, 
discontinued or abuted, on application of any person ag- 
grieved, and on good cause shown, and on such notice as 
shall be directed or approved by the court, order the notice 
authorized by this section to be canceled of record by the 
clerk of any county in whose office the same may have been 
filed or recorded ; and such cancelation shall be made by an 
indorsement to that effect on the margin of the record, which 
shall refer to the order, and for which the clerk shall be en- 
titled to a fee of twenty-five cents. 

Yolnntarjr appearaifce* — A voluntary appearance is eauivalent to service 
of summons. Bank v. Wilson, So— 200: Wheeler v. Cobb, 75 — 21; Middle- 
ton V. Duffy, 73 — 72; Moore v. N. C. R. R., 67 — 209. 

But does not supply the place of summons not actually issued. Etheridge 
V. Woodley, 83—11; contra, Heilig v. Siokes, 63 — 612; Moore v. N. C. 
R. R., 67 209; Herrey v. Edmunds, 68—243 ; Middleton v. Duflfy, 73—72; 
State v. Jones, 88 — 683. 

A general appearance waives all defects in the summons. Jones v. Penland, 
2 D. & B., 358; Hyatt v. Tomlin, 2 Ire., 149; Duffy v. Averitt, 5 Ire.. 455; 
J, > ^./ Wheeler V. Cobb, 75—21. 

I ' * ^ Notice of all proceedinffS* — A defendant upon whom a summons is served 

^ is fixed with notice of all subsequent orders in the cause. Sparrow v. David- 

ipyl. son. 77—35: University v. Lassiter, 83-— 38. 

• \ Lift pendens, when applicable* — Lis pendens does not generally apply 

in proceedings to obtain alimony, but will in certain instances, as in this case 
where the land in question was all the property the defendant possessed. Dan- 
iel V. Hodges, 87—95. 

Lis pendens applies where there was a motion to issue a ven, ex.^ and the 
land was aliened pending the motion. Isler v. Brown, 66^556. 

Also where there was a proceeding to subject equitable property to the pay- 
ment of a judement. Tabb v. Williams, 4 Jones Eq., 352. 

Also where the land was the subject of a suit in equity at the time of its 
alienation. Baird r. Baird, Phil. Eq., 317. 

Liis pendens f wheo not necessary* — A lis pendens is not necessary to 
bind a purchaser with notice, who buys land at an execution sale in the county 
where the litigation was pending. Rollins v. Henry, 78 — 352. 

Lis pendens notice to all the world*— A lis pendens filed only in the 
county where litigation is pending is yet notice, constructively, in every county 
ill the state from the date of the filing. Todd v. Outlaw, 79!-— 235. 

Before the C. C. P. the pendency of an action for land was notice to all the 
World. Baird v. Baird, Phil. Eq.. 317. 

Property must be specifically described*— A party to an action desiring 
to claim the protection of a notice by lis pendens must describe the property 
• specifically in his pleadings. Badger v. Daniel, 77 — 25 1 ; Todd v. Outlaw, 
79—235. 

lAs pendens by a third party— One who is refused leave to be made a 
party to the action can protect his interest in the subject matter of the contro- 
versy by filing a Us peiukfis in each county where the land lies and instituting 
prooBedings. Toms v. Warson, 66—417. 



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CLARK'S CODE OF CIVIL PROCEDURE. 77 

Sec, 230. Parties may apply for relief to the superior court 
in vacation or in term time, 1871^^2, c. .?, ». 1, 

In all cases where the superior court in vacation has 
jurisdictioU) and all of the parties unite in the proceedings, 
they may apply for relief to the superior court in vacation, 
or in term time, at their election. 

By consent of parties, a judgment can be taken in vacation. Hervey v. Ed- 
munds, 68 — 243. 



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78 



CLARK'S CODE OF CIVIL PROCEDURE. 



^TITLE VII. 
THE PLEADINOS IN CIVIL ACTIONS. 



Chap. 



I. 

II. 
III. 
IV. 

V. 



VI. 
VII. 



The Complaint. 

The Demurrer. 

The Answer. 

The Reply. 

Duties and Powers op the Clerk in Rela- 
tion TO the Pleadings and Collateral 
Matter. 

General Rules of Pleading. 

Mistakes in Pleadings and Amendments. 



CHAPTER ONE. 



THE COMPLAINT. 



Section. 

231. Forms of pleading. 

232. Complaint. 

233. Complaint, what to contain. 

234. Complaint in action to re- 

cover debt contracted for 
the purchase of land, what 
to set forth. 

235. If answer denies that debt 



Section. 
was 



contracted for pur- 
chase of land, issue to be 
submitted to jury. 

236. Form of judgment and ex- 
ecution upon judgment 
for plaintiff. 

237. I)efendant to file bond in 
action for real property. 

Sec. 231, FomiH of pleading, C, C, P., s, 91, 

The forms of pleading in civil actions in courts of record, 
and the rules by which the suflBciency of the pleadings is 
to be determined, are those prescribed by this Code. 

Commou law rules of pleadhlg. — The rules of pleading at common law as 
regards materiality, certainty, prolixity, obscurity, &c., prevail under the C. C. 
P. Crump V. Mims, 64 — 767. 

The rules of pleading and construction at the common law have not been 
abrogated. The essential principles remain, and have only been modified as 
to technicalities and matters of form: Parsley v. Nicholson, 65 — 207. 

The object of the Code was to abolish the different forms of action, and the 
technical and artificial modes of pleading used at common law, but not to dis- 
pense with regularity, certainly and uniformity, which are essential in every 
system. The plaintiff must state his cause of action with the same substantial 
certainty that was formerly required in a declaration. Oates v. Gray, 66 — 442. 



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CLARK S CODE Of CIVIL PROCEDURE. 79 

Former system of pli^adliig otterljr abolished.— The subtle science of 
pleading heretofore in use is not merely relaxed but is abolished by the C. C. 
P. Moore v. Edmiston. 70 — 510 

While the Code nowhere expressly adopts the doctrine of aider by admis- 
sions expressed or implied in pleading over, the principle commends itself so 
strongly by ils good sense, that it must be taken to underlie every system of 
procedure professing to put controversies on their merits, to aim at furtherance 
of justice and not to allow actions to go off upon* subtleties and refinements. 
Garrett v. Trotter, 65 — 430. 

Ooly one form of action. — If there is anything settled in our new system* 
it is that there is but one form of action. There are torts and contracts just as 
there used to be ; but there are not several forms of action as there used to be ; 
and the pleadings are not now suited for different forms of action but all are 
suited to one form of action, whether the subject of the action be tort or con- 
tract. Bitting V. Thaxion, 72 — 541. 

Only the forms prescribed in this section remain.— All previous forms o( 
pleading are abolished, and now there exists only the forms of pleading and the 
rules by which their sufficiency is determined as prescribed by this section. 
Jones v. Mial, 82 — 252 ; Gorman v. Bellamy, 82 — 496. 

All form not abolished. — All the forms of pleadings heretofore existing are 
abolished, but all form is not abolished. Moore v. Hobbs, 79—535. 

Sec. 232. Complaint. C. C. -P., 8. 92. 

The first pleading on the part of the plaiDtiff is the com- 
plaint. 

Sec. 233. Complaint, what to contain. C. C. P., s. 93. 

The complaint shall contain: 

(1). The title of the cause, specifying the name of the court 
in which the action is brought, the name of the county in 
which the trial is required to be had, and the names of the 
parties to the action, plaintiff and defendant ; 

(2). A plain and concise statement of the facts constitut- 
ing a cause of action, without unnecessary repetition ; and 
each material allegation shall be distinctly numbered. 

What the complaint mnst contain.— The complaint is required to contain 
a plain and concise statement of the facts constituting a cause of action without 
unnecessary repetition, and a demand of the relief to which the plaintiff sup- 
poses himself entitled. Jones v. Mial, 82 — 252. 

Few, if any, of the ancient rules of pleading are now applicable. All that is 
required of the plaintiff is a plain and concise statement ol the facts constituting 
a cause of aoion. Gorman v. Bellamy, 82 — 496. 

The complaint shall contain a ** plain and concise statement of the cause of 
action.'* Moore v. Hobbs, 77 — 65, 

The plaintiff must state his cause of action with the same substantial cer- 
tainty as was formerly required in a declaration. Oates v. Gray, 66 — 442. 

A memorandum of a claim is not a complaint. Isler v. Murphy. 76—52. 

The complaint in an action agrainst a married woman.— The complaint 
in an action against a married woman must allege that she is possessed of a sep- 
arate estate, that the contract is such as she is competent to make and that it is 
for her advantage. Dougherty v. Sprinkloi 88 — 300. 



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80 CLARK'S CODE OF CIVIL PROCEDURE. 



The COmplaiBt In an action for dlrorce.— In a diTorce suit where a wife 
alleges ill-treatment by her husband but fails to state the circumstances con- 
nected with the assaults charged and the causes which brought them on, the 
complaint is insufficient and defective. White v. White, 84 — 340. 

The eomplalnt In an action a^lnnt conntjr commissioners.— A com- 
plaint in an action by a board of commissioners, against a defaulting tax-col- 
lector, is demurrable, if it fail to state that the county treasurer fails and refuses 
to bring the action. Commfksioners of Pender v. McPherson, 79 — 524. 

Complaint In action to enforce a right of way.— In an action to enforce 
a right of way, the complaint must show how the plaintiff became entitled to 
such right. Boyden v. Achenbach, 79 — 539. 

The complaint In an action to recover land. — A complaint in an action 
to recover real estate which alleges that the defendant withholds tbe possession 
of the premises described, but does not aver that it is wrongfully withheld, is 
defective. Garrett v. Trotter, 65 — 430. 

When the complaint demands the possession of land, nothing more is put in 
i.«sue than a right of entry or a right of present possession ; at least, when no 
particular estate is alleged in the complaint. Whether a judgment in an action 
m which the complaint alleged a certain estate, would be an estoppel between 
the parties, is a question too nice to be decided until the case shall arise for 
consideration. Harkey v. Houston, 65 — 137. 

The complaint In an action for slander.— In an action for slander, the 
complaint must set out the actionable words spoken, and not simply a narrative 
of what occurred. Bums v. Williams, 88 — 159. 

The complaint in an action of del»t. — The complaint in debt upon sim- 
ple contract must set out the consideration among other facts. Moore v. 
Kobbs, 79 — 535. 

Two unconnected causes of action. — A complaint eontaining two uncon- 
nected causes of action against different persons is demurrable. Burns v. Wil- 
liams, 88 — 159. 

A plaintiff cannot join in the same complaint a cause of action against one 
of two defendants, with another, against both. N. C. Land Co. v. Beatty, 
69 — 329. 

See § 267. post^ and cases there cited. 

Non-snit as to some of the canses of action.— Where the complaint set 

out three causes of action, and on the trial the plaintiff entered a non-suit as 
to two of them, he is entitled to prosecute his action as to the remaining cause 
of action. Grant v. Burgwyn, 84 — 560. 

Safficlency of the complaint. — A complaint for converting a mortgaged 
crop, which avers the title to such crop raised by the morlgagor, and by him 
conveyed to the plaintiff, its delivery to the defendant, its value, and iisappro- 

?)riation by the defendant to his own use after demand by the plaintiff, is in 
uU compliance with the requirements of this section. Womble v. Leach, 
83—84. 

A complaint in an action to recover land, which alleges that the plaintiff is 
the owner in fee, describes the same by metes and bounds, and alleges that the 
defendant wrongfully withholds possession, concluding with a demand for judg- 
ment for fhe possession, for damages for withholding the same, and for costs, 
is amply sufficient under the Code. Johnston v. Pate. 83 — 110. 

The rigorous particularity requisite under the old system is not required in 
filing a complaint under the C. C. P. Brown v. Morris, 83 — 251. 

Recovery must be solely on facts stated in the complaint.— A plaintiff 
can not recover upon a state of facts other than those set out in his complaint 
except by amendment of his complaint. Shelton v. Davis, 69 — 324. 

When a Jndgment will cnre the absence of a complaint.— Judgment 

cures the absence of a complaint where the specialty is filed as a substitute and 



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CLARK'S CODE OF CIVIL PROCEDURE. 8 1 



the summons names the amount. Vick v. Pope, 8i — 22 ; Leach v. Railroad, 
65—485. 

See also §§ 179, 183, 184, 185, i86, 223 and 231 ante ; also §§ 239, es- 
pecially 239 (6), 260, 261, 269, 270, 270, 271, 274, post^ and cases cited un- 
der them. 

(3). A demand of the relief to which the plaintifiF sup- 
poses himself entitled. If the recovery of money be de- 
manded, the amoant thereof must be stated. 

Defect In the demand for Jad^meut ininiat«rlaL — Any informality or 
defect of the demand for judgment is immaterial and can not be ground for de- 
murrer or other objection, so long as the sum demanded (in an action for money 
only^ appears from the summons and how it is due, from the complaint. Dunn 
V. Barnes, 73 — 273. 

Plaintiff entitled to any relief not inconsistent irith the pleadings.— 

No general prayer need be expressed in the pleadings, but is always implied. 
•The party is not restricted to the specific relief demanded, but may have any 
relief justified by the facts proven, and not inconsistent with the pleadings. 
Knight V. Houghtaling, 85 — 17. 

The relief, if there be no answer, shall not exceed that demanded in the 
complaint, but in any other case any relief may be granted consistent with the 
case made by the complaint and embraced in the issue. Jones v. Mial, 82 — 252. 

It is the apparent purpose of the new system, while simplifying the method 
of procedure, to afford any relief to which a plaintiff may be entitled upon the 
facts set out in his complaint, although misconceived, and not specially de- 
manded in his prayer. Smith, C. J., in Jones v. Mial, 79 — 168. 

Hec* 234, Complaint in action to recover debt contracted 
for the purchase ofland, what to set forth. 1879, c. 217* 

In actions for the recovery of a debt contracted for the 
purchase of land, it shall be the duty of the plaintiff to set 
forth in his complaint that the consideration of the debt 
sued on was the purchase money of certain land, describing 
said land in an intelligible manner, such as the number of 
acres, ho^ bounded, and where situated. 

This section does not apply where a deed has already been executed to the 
vendee. Lewis v. McDowell, 88 — 261. 

Sec* 235. If answer denies that debt was contracted for 
purchase of land, issue to be submitted to Jury, 1879, c, 
217. 

If the defendant shall deny in his answer that the obli- 
gation sued on was for the purchase money of the land de- 
scribed in the complaint, it shall be the duty of the court 
to submit the issue so joined to the jury. 



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82 CLARK'S CX>DE OF CIVIL PROCEDURE. 

Sec* 236. Form of Judgment and execution upon Judgment 
for plaintiff. 1879, c. 217. 

If the answer does not deny the said allegation so set 
forth in the complaint, or if the said issue shall be found 
by the jury in favor of the plaintiff, it shall be the duty of 
the court to have embodied in the judgment, that the debt 
sued on was one contracted for the purchase money of said 
land, describing it briefly ; and it shall also be the duly of 
the clerk to set forth in the execution, that the said debt 
was one contracted for the purchase of said land, the de- 
scription of which shall be set out briefly as in the com- 
plaint. 

A sheriff is justified in refusing to sell the homestead under an executiou< 
issued upon a judgment, which does not specify thai it is rendered for the pur- 
chase money due (or such homestead. Should he, however, sell in such a case, 
the sale is valid. Durham v. Bostick, 72 — 353. 

Sec, 237' I>€fen dant to file ban din action for reed property. 
1869''70, c. 193, 8. 1. 

In all actions for the recovery of real property, or for the 
possession thereof, the defendant, before he is permitted to 
plead, answer or demur, shall execute and file in the office 
of the clerk of the superior court of the county wherein the 
suit is pending, an undertaking, with good and sufficient 
surety, in an amount to be fixed by the court, not less than 
two hundred dollars, to be void upon condition that the de- 
fendant pay to the plaintiff all such costs and damages as 
the plaintiff may recover in the action, including damages 
for the loss of rents and profits : Provided^ that no such un- 
dertaking shall be required if an attorney, practicing in the 
court wherein the action is pending, will certify to the court 
in writing that he has examined the case of the defendant 
and is of the opinion that the plaintiff is not entitled to re- 
cover, and if the defendant will also file an affidavit, stating 
that be is not worth the amount of said undertaking in any 
property whatsoever, and is unable to give the same. 

Bond secures damages as well as costs* — The bond of defendant secures 
damages as well as costs. Rollins v. Henry, 77 — 467. 

Additional security can be required.— The court in a proper case has the 
power to order the defendant to give additional security, and on his failure to 
omply, can strike out the answer and award judgment. Vaughan v. Vincent. 
^8-116. 



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CLARK'S CODE OF CIVIL PROCEDURE. 



83 



Sniiimaryjndgmeut against safeties. — Upun judgment being rendered 
against the defendant in an action to recover land, it is not error to enter up a 
summary judgment against the sureties on his bond. Rollins v. Henry, 84 — 569. 

Wh«*re landlord Is Joined with tenant as a defendant.— While the land- 
lord may be joined with the tenant as a defendant, each must give bond or be 
relieved of doing so under above section. Should the tenant fail to give bond, 
judj^eni can be taken against him, but no execution will issue till the defence 
set up by the defendant landlord is passed upon. Harkey v. Houston, 65 — 137. 

]>er<^ndant in forma pauperis. ^K defendant who is allowed to defend 
an action for the recovery of land without giving bond is entitled to recover 
coR''^ Justice V. Eddings, 75 — 581. 

Where the defendant is allowed upon affidavit to defend without giving secu- 
rity for costs, he is neither exempted from paying costs if judgment is rendered 
against him, nor prevented from recovering costs. Lambert v. Kinney, 74 — 348. 

No notiee required* — No notice is required of an application for leave to 
defend without giving bond upon filing the affidavit specified in this section. 
De;»l V. Palmer, 68—215. 

Leare not a matter of discretion.—Where the requirements of ih^ proviso 
in this section are complied with, leave to defend without giving bond is a mat- 
tti ut right, and does not rest in the discretion of the judge. Jones v. For- 
tune, 69---322. 



CHAPTER TWO. 
THE DEMURRER. 



Section. 

;238. Defendant to demur or an- 
swer. 

239. When defendant may de- 

mar. 

240. Demurrer must specify 

grounds of objection. 



Section. 

241. Objection not appearing on 

complaint. 

242. Objection when deemed 
widved. 



Sec. 238. Defendant to demur or answer. C. C. P., s. 94. 

The only pleading on the part of the defendant is either 
a demurrer or an answer. If the plaintiff shall have failed 
to file his complaint within the time limited for the pur- 
pose, the defendant may move for judgment of non-suit. 

Defence most be present^^ in apt lime. — As a general rule, the defence 
must be presented in apt time, or it is waived. This rule does not apply where 
the complaint is one on which a judgment could not be given. Pearce v. Ma- 
son, 78 — 37. 

A demnrrer precpdes an answer. — A demurrer precedes an answer, and 
can not be put in after it, without leave obtained to withdraw the answer. 
Finch v. Baskerville, 85 — 205. 

The only pleading by defendant.— The only pleading on the part of the 
defendant is a demurrer or answer. McClenahan v. Gotten, 83 — 332. 



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I 



84 CLARK'S CODE OF CIVIL PROCEDURE. 

A defendant is to answer or demur ; if he answers, the plaintiff is to reply or 
demur ; but neither can reply and demur to the same cause of action or the 
same defence at the same time, and if he does so, the answer or reply waives 
the demurrer. Ransom v. McClees, 64 — 17. 

A motion for non-sait not 11 sabstitatA for a demarrer.— A motion for 

non-suit can not be made a *»ub titule for demurrer. If the complaint does not 
set forth a cause oi action, the defendant should demur. He can not take ad- 
vantage of a demurrable defect by this motion. Andrews v. Prilcheit, 66 — 387. 

The use of the word ^^ pleading.^ — The use of the words •* plead" and 
/ ** pleading" in acts subsequent to the C. C. P. have not the effect to re-instatc 

/ to any degree the fornur system. Oales v. Gray, 66 — 442. 

,' Stiitate of limf tations. — When the statute of limitations is relied upon as 

/ a ^defence, it must be set up by answer ; it can not be taken advantage of by 

demurrer. Green v. North Carolina R. R. Co., 73 — 524. 
Pendency of former aiHIon. — The objection of the pendency of a former 
^ action must be taken by answer. Harris v. Johnson, 65 — 47S. 

Several defendants Jofnlly H.-ible.— Where defendants are jointly liable, 
one can not answer and another demur, but all must join cither in a demurrer 
p Aor answer. Von Glahn v. DeRossett, 76 — 292. 

") } A ^x\ '^ ^ 'An answer or reply oyerrnles a demurrer. — If a defendant demur to a 
V-^ complaint or a plaintiff to an answer, and afterwards answer or reply, before th6 

^ hearing on his demurrer, such answer or reply overrules the demurrer and 

! ^,'^'*^ - waives all objection taken thereby excepting only that to the jurisdiction of 

the court, and that a cause of action is noX.&LaleiL Hyman v. Devereux, 63 — 624. 
Aplaintiff can eleet to be non-snited.— A plaintiff may elect to be non- 
suited in every case when no judgment, other than for costs, can be recovered 
against him ; when a judgment other than for costs may be had against him, 
he can rot so elect. McKesson v. Mendenhall, 64—502. 

A plaintiff may elect to be non-suited after the defendant has moved to dis- 
miss for want of jurisdiction uf>on the judge intimating an opinion against him. 
Pescud v. Hawkins, 71 — 299. 

The plaintiff can elect to be non-suited W^harton v. Currituck, 82 — 1 1 ; 
Graham v. Tate, 77—120 ; Tate v. Phillips, 77 — 126. 

iSec. 239. When defendant may demur. C. C. -P., ». 05. 

The defendant may demur to the complaint when it shall 
appear upon the face thereof, either : 

Wliat demarrable. — A demurrer can only be sustained for one of the causes 
of demurrer specifically set out in this section. Dunn v. Barnes, 73 — 273. 

Frivoloos Demurrer. — A demurrer upon the ground that the complaint 
fails to set out that the plaintiffs constitute a firm and that the debt is due to 
them, as such, and also fails to set out the names of the persons composing the 
firm, is frivolous and entitles the plaintiff to judgment on his complaint. Cowan 
v. Baird, 77 — 201. 

Any informality in the demand for judgment is not ground for demurrer, 
when, in an action for money only, the sum demanded and how it is due appear 
either from the summons or the complaint. Dunn v. Barnes, 73 — 273. 

See also Johnston v. Pate, 83 — no, in notes to sub-section 6 of this section. 

Misjoinder of unnecessary parties. — The misjoinder of unnecessary par- 
ties, either as plaintiffs or defendants, is mere surplusage and not demurrable. 
Green v. Green, 69 — 294 ; Righton v. Pruden, 73 — 61 ; Hargrove v. Tuck, 
73—24. 

An action by the ** attorney general in the name of the people on the relation 
of A " is not demurrable. Hargrove v. Tuck, 73 — 24. 



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CLARK'S CODE OF CIVIL PROCEDURE. 8$ 

Statnte of liniitatioilM* — The defence of the statute of limitations can not 
be taken by demurrer. Green v. R. R. Co., 73 — 524. 

If objection not taken before the Justiee. — If an objection for want of 
prcjper parlies is not taken in a trial before the magistrate it is waived, and can 
not be taken in the superior court on appeal. Davidson v. Elms, 67 — 223. 

If demurrer Is overruled. — In a suit upon a contract made prior to theC. 
C. P., if the defendant demur for want of parties, and the demurrer is sus- 
tained in the superior court, and upon appeal to the supreme court the demur- 
rer is overruled, the plaintiff will be entitled to a final judgment in the supreme 
court. Merwin v. Ballard, 65 — 168. 

After a judgment overruling a demurrer as frivolous, the right to answer over 
is not a matter of course, but depends upon ihe^ound discretion of the court. 
Dunn V. Barnes, 73 — 273. 

If a demurrer is overruled, the same point cannot be presented by a motion 
to dismiss. Wilson v, Lineberger, 82 — 412. 

Under the old system, upon the overruling of a demurrer, in an action for 
goods sold and delivered, the judgment granted for the plaintiff was only in- 
terlocutory, and his damages must be ascertained by the inquisition of a jury, 
Merwin v. Ballard, 66 — 398. 

*^Speaklngr** demurrer not allowable.— A demurrer which, in order to 
sustain itself, invokes the aid of a fact not appearing in the complaint, must be 
overruled. Von Glahn v. DeRosselt, 76 — 292; Moore v. Hobbs, 77—65. 

A demurrer admits ailegrations of fact, not legral conclusions.— In an 

action tor claim and delivery of a horse, where the answer alleges a lien upon 
it, a demurrer to the answer does not adroit the lien but merely the facts set 
out in the complaint, dcn^ng their sufficiency in law. Mauney v. Ingram, 

78—96. -_—'<;- 

Complaint stating conclusions of law. — A complaint which states conclu- 
sions of law, and not the facts from which they are derived, is demurrable both 
at common law and und.'r C. C. P. Moore v. Hobbs, 79—535. 

Motion for Judgment on complaint and answer. — It is irregular for 
the plaintiff to move for judgment upon complaint and answer. If the alle- 
gations in the answer are admitted, the proper course is to demur. Baldwin 
v. York, 71 — 463. 

Every demurrer is now a special demurrer. — A demurrer under the 
Code differs from a demurrer at law, in that every demurrer, whether for sub- 
stance or form, is now a special demurrer, and must distinctly specify the 
ground of objection to the complaint, or be disregarded as frivolous ; it differs 
from a demurrer in equity, in that the judgment overruhng it is final, and de- 
cides the case unless leave is obtained to put in an answer. Love v. Com'rs 
of Chatham Co., 64 — 706. 

(1). That the court has no jurisdiction of the person of 

the defendant, or of the subject of the action ; or 

When Jurisdiction can be conferred by consent.— Where there is a de- 
fect of jurisdiction, it can not be conferred by consent, but where the court has 
general jurisdiction of the subject, and the lack of it in a particular case de- 
pends upon some exceptional matter, objection must be taken in limine. ' 
Hawkins V. Hughes, 87—115. 

Defect of Jurisdiction must appear by the complaint.- A demurrer for 
want of jurisdiction can only be sustained when the defect appears on the face 
of the complaint. Bank v. Britton, 66 — 365. 

Defect of Jurisdiction must be demurred to.— The want of jurisdiction 
is not the subject of a '* plea" at all. If it exist, it is ground for demurrer. 
Flack V. Dawson, 69 — 42. 



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86 CLARK'S CODE OF CIVIL PROCEDURE. 

Where amendment of pleadings caoses a defect of Jorl8dici1on.— Where- 

a complaint which stales matters properly triable in the probate court is amended 
hi the superior court on appeal by engrafting new matter cognizable only by 
Uie superior court in term, a demurrer averring want of prisdiction will besus^ 
tained. Capps v^ Capps, 85—408. Compare Cheatham v. Crews, fti — 343 ;. 
Vaughan v. Vincent. 8& — 116 ; Finch v. Baskerville, 85—205. 

Demarrer for defect of Jorisdietlon of the person.—A demurrer to the 
jurisdiction of the superior court in an action to recover from an executor the 
interest of a legatee, is bad when a part of the relief sought is to enforce a trust 
created by contract on the part ot his testator, and not arising out of the official 
duty of the executor, or a constructive trust arising out of his fraud. Oliver v. 
Wiley. 7S— 3^- 

.Or, where the legacy has been assented to by the executor, and that fact ap- 
ptars in the complaint. McFarland v. McKay 74 — 258. 

In an action A brought sgainst a county for a debt due for building a bridge, 
thi defendants demurred on the ground that "mardamusis the only form of 
action against a county." Rodman, J., delivering the opinion, says : '* Where 
• good cause of action exists, a municipal corporation may be sued in the usual 
form, and its liability does not differ, as respects the form of action, from that 
of an individual. What will be the effect of a judgment and hew the same will 
be enforced, are not questions affecting the form of action." Winslow v. Corn** 
of Perquimans Co., 64 — 2i8. 

Deniarrer for defect of Jurisdiction of the snbject matter*— The superior 
court has jurisdiction to declare a trust in real estate. Gulley v. Macey, 81 — 
356 : Dula V. Young. 70 — 450. 

A lesatee may sue in the superior court the administrator of the executor of 
the will of her devisor, to have him declared a trustee of specific funds in his 
hands for her benefit arising from the estate of his intestate's testator, and re- 
quiring an account of the same. McFarland v. McKay, 74 — 258. 

An action for deceit atid false warranty in the sale of a horse is cognizable 
by the superior court, though the damages claimed amount only to fifty dollars. 
Ashe V. Gray, 88 — 190. 

Where a special proceeding is transferred to the superior court on issues 
raised by the pleadings and the answer is stricken out. the jurisdiction of the 
superior court ceases, and it must issue a procedendo to the probate court. 
Vaughan v. Vincent, 88 — 116. 

An action to remove a cloud from title is demurrable if it appears the plaintiff 
is out of possession and can test his right by an action of ejectment. The court 
has no jurisdiction of an equitable proceeding when there is an adequate rem- 
edy at law. * Pearson v. Boyden. 86^585 j Busbee v. Macy, 85 — 329 ; Busbee 
▼. Lewis. 85 — 332. 

The superior court has no jurisdiction when the complaint avers that the de- 
fendant illegally exacted taxes of the plaintiff to the amount of $150, but ex- 
pressly waives the tort. Winslow v. Weith. 66 — ^432. 

A complaint which allege that the plaintiff had theretofore obtained a judg- 
ment agamst the defendant, the record of which had been destroyed, is bad ; 
since the record is the judgment itself and no action can be based on it until it 
is restored. Walton v. McKesson, 64 — 77. 

When an executor assents to a legacy, it becomes a debt, and the superior 

j" J court has jurisdiction of it, as a promise to pay. Hodge v. Hodge, 72 — 616. 

-*• '' The stay law, contained in the ordinances of June, 1866, and March, 1868, 

V^ \ is unconstitutional and void, and the superior court, has jurisdiction in the cases 

/ embraced by them, and may proceed at once, as in other cases. Jacobs v. 

\ .1 I Sroallwood, 63 — 112; Rives v. Williams, 63 — 128; Holt v. Iseley, 63 — I2g ; 

' Swepson v. Chapman, 63 — 130. 

(2). That the plaintiff has not legal capacity to sue; or 

Where lands are devised to A, with remainder to her children, conditioned 
that she has any to live to be twet^iy-one years old, and upon failure thereof to 



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'CLA'RK^S COl^E OF CIVIL PROCEDURE. B? 

B, B has a sufficient interest to sustain a suit against A to restrain waste, when 
A has been married twelve years, and has arrived at ihe age of fifty-two years 
•without having givcM birih to a child. Gordon v. Lowther, 75 — 193. 

A pariy injured by a false return of a sheriff may sue in his own name to re^ 
•cover ihe statutory penalty for making sudi false return, although the action in 
which the fal^e return was made was brought in the name of the state to the 
•use of such parly. Peebles v. Newsom. 74 — 473. 

Where purchase money has been paid upon an agreement for the sale of land, 
if the contract is vacated after the death of the vendee, his heir at law \ as legal 
capacity to sue for the recovery of the money. Young v. Young, 81 — 91 ; Tate 
V. Connor, "2 Dev. Eq., 224. 

(^). That there is another action pending between the 
same parties for the satne cause ; or 

The former action mast be between the same partles.—The pen- 
-dency of a former, to abate a later, suit must be between the satne plirties 
and for the same <:ause of action. Harris v, Johnson, 65 — 478; Woody v. 
Jordan, 69 — 189; Sloan v. McDowell, 75 — 29. 

The former action mont be pendlugr in a state ooart.— The action pend^ 
tng, in order to constitute aground of demurrer, mast be one pending in some 
court of this stat€. Sloan v. McDowell, 75 — 29. 

The pendenej of former action must be specifically set np.— The court 
will not take notice of the pendency of another action, unless it appear of rec* 
ord by plea, answer or demurrer. Smith v. Moore, 79 — 82. 

The pendency of a former action is strictly a matter of abatement, and must 
be set up in the answer or m some way insisted upon before a trial on the mer^ 
its, or it is waived. Hawkins v. Hughes. 87 — 115. 

The pendency of a former action, between the same parties for the same cause, 
is a good defence in a second action, to be taken advantage of by demurrer if 
it appear in the complaint, and by answer if it do not. Harris v. Johnson, 
65—478. 

Before a Justice of the peace* — Where a summons before a justice was not 
served, and on its return day another summons for the same cause of action 
was issued by another justice, the first action terminated when the second one 
began, and can not be pleaded as a defence under this section. Webster v. 
Laws, 86 — 178. 

Note — A demurrer setting up the pendency of a former action was over- 
ruled ** upon the liberal procedure adopted by the C. C. P," in Glenn v. Bank, 
72 — 626. 

(4). That there is a defect of parties plaintiflF or defend- 
ant; or 

Misjoinder of unnecessary parties. — The misjoinder of unnecessary par- 
ties is a mere matter of surplusage under the Code, and not a fatal objection. 
The failure to join necessary parties only, is a ground of demurrer for ** defect 
of parties." Green v. Green, 69 — 294 ; Rowland v. Gardner, 69 — 53 ; Righton 
v. Pruden, 73 — 61 ; Hoover v. Berryhill, 84—182. 

Objection must be taken by demurrer* —The objection that there is a 

defect of parties plaintiff can only be taken by demurrer. Davidson v. Ehns, 
67 — 228. 

In an action of trespass^ commenced before the adoption of the Code, and tried 
afterward, the defendant not having demurred for a non-joinder of necessary- 
parties, can not raise the question afterward under the general issue. Lewis v, 
McNatt. 65 — 63. 



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88 CLARK'S CODE OF CIVIL PROCEDURE. 



Failure to join a necessary party.— The failure to join as a plaintiff, or 
defendant, one who is a necessary party to a complete deierminalion and set- 
tlement of the question involved in the action is ground for a demurrer. Gill 
V. Young, 82 — 273. 

Not necessary party. — The wife is not a necessary party to an action 
brought by her husband, who is tenant by the courtesy initiate, to recover her 
lands. Wilson v. Arentz, 70 — 670. 

A guardian who lends the funds in his hands to a firm of which he is a mem- 
ber, taking their note payable to himself, and afterwards assigns such note to 
the husband of his ward in settlement of her interest, is not a necessary party 
to a suit brought to recover on said note. Gudger v. Baird, 66 — 438. 

Where the parties are very nnmerous.— Where it is averred in the com- 
plaint that the defendants and others unknown to plaintiffs, aie stockholders in 
a corporation, and are so numerous that it is impracticable to bring them all , 
before the court, a demurrer for defect of parties will not be sustained. Bron- 
son V. Insurance Co., 85 — 411. 

In an action against a bank to recover on bills issued as currency, it is not 
necessary to make all the holders of such bills plaintiffs though thty may come 
in, the action being in the nature of a creditor's bill, and share the recovery. 
Wilson v. Bank, 72—621. 

When, in such action, relief is demanded against the stockholders also, they, 
being represented by the bank, need not be made parlies defendant. Ibid, 

An action is well brought on such bills against (i) the bank which issued 
them, (2) a bank which agreed to redeem them, and (3) against a person who 
covenanted that they should be redeemed, and the stockholders held harmless, 
all of them being necessary parties to a complete determination of the contro- 
versy. Ibid. 

Where the charter of a bank provides that the stockholders, in case of its in- 
solvency, shall each be liable m double the amount of their individual stock, to 
the creditors of said bank, the creditors of the bank are joint obligees and can 
not sue separately, but they must all be plaintiffs in an action to enforce such 
liability, and as they are presumably many in number and may be unknown, 
one may be allowed to sue in his own name, in behalf of all according to the 
rule in courts of equity. Von Glahn v. Harris, 73 — 323; Von Glahn v. Sav- 
age, 73—333- 

So loo, the stockholders are joint obligors and not several, and must be pro- 
ceeded against jointly by all the creditors, or one of the creditors may sue in 
behalf of himself and all the others, all the stockholders who may all defend, or 
one may defend for himself and all the others. Ibid. 

Action on bond of a deceased administrator.-^ An action on the bond of a 

deceased administrator can not be brought on the relation of the next of kin 
of his intestate, before appointment of an administrator de bonis non. Good- 
man v. Goodman, 72 — 508. 

Action by next of kin. — Where the next of kin sued the administrator in 
the probate court and obtained judgment for the amounts severally due them, 
an action by one of them (without joining the others) against the adminis- 
tration bond to enforce his judgment is not demurrable for defect of parties. 
Hoover v. Berryhill, 84 — 132. 

Grantees of different fraodnlent conTcyances. — Where alleged fraudu- 
lent conveyances are made to several grantees, they are all necessary and proper 
parties to a proceeding to set them aside instituted by an impeaching creditor 
of the grantor. Bank v. Harris, 84 — 206. 

Action opon joint obligation.— In an action brought after the adoption of 
the Code, for the.value of goods sold and delivered in i860, it was held that the 
rule of the Revised Code, sec. 84, chap. 31, in regard to the joinder of parties 
defendant in cases of joint obligations, prevailed, and that a demurrer would 
not lie for failure to unite them al> in the action. Merwin v. Ballard, 65 — 168. 



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clvrk's code of civil procedure. 89 

Partj plaintiff in interest made a co^efendant.— In a proceeding by the 

next of km against the administrator for a ^etllement, it is not ground for de- 
murrer that the defendant's wife, who is one of the next of kin, is made a co-de- 
fendant with him without alleging in the complaint that she had refuhcd to join 
as plaintiff. McCormac v, Wiggins, 84 — 278. 

Trustee oansae without Joining tlie cestui que trust.— When a bond 
was made payable to A and B, and assigned ** Pay to C, trustee for A and B,'* 
the trustee can sue in his own name and without joining his cestui que trust. 
Davidson v. Elms, 67 — 228. 

Sheriff proper party to action* — A sheriff is a proper party to an action to 
recover possession of land sold by him under execution, when it is alleged that 
the deed given by him has been lost and the execution ql a new one is sought. 
McMillan v. Edwards, 75 — 81. 

State need not be joined* — A party injured by a false return of a sheriff, 
may sue in his own name for the penalty without joining the Slate or making 
himself relator. Peebles v. Newsom, 74 — 473. 

Actions of quo warranto, — An action in the nature of a quo zvananto, 
for an office, entitled *' T. L. Hargrove, attorney-general, in the name of the 
people of said state and on the relation of N. N. Tuck, plaintiff, v.," is well 
brought and a demurrer for defect of parlies will not lie. People v. Hunt, 
73—24. 

An action to try the title to an office may be brought by the attorney-general 
on his own information, without joining another claimant as a relator. People 
v. Hilliard, 72 — 169. 

Mortgagor and Mortgagee* — Where a mortgagor, under a mortgage con- 
taining a power of sale, denied his indebtedness to the mortgagee, and conveyed 
the land to a third party under an agreement that he should bid it in at the sale, 
and hold it as security for the amount paid, after the sale brought suit against 
the mortgagee, for an account and settlement, and made the said third party a 
defendant, it is not a demurrable misjoinder. Buie v. Building and Loan Asso- 
ciation, 74 — 117. 

In an action by the debtor to enjoin a judgment creditor from selling property 
on which there are mortgages, the mortgagees are necessary parties. Gaster v. 
Bardie, 75 — 460. 

Action to compel a trustee to collect a bond. — In an action arising out of 
the fraudulent conduct of a trustee in failing to collect a bond given for the ben- 
efit of certain parties named therein, to compel him to collect the same, both the 
beneficiaries and the personal representatives of the obligors in said bond are 
necessary parties and must be made plaintiffs or defendants. OUver v. Wiley, 
75—320. 

(5) That several causes of action have been improperly 
united ; or 

Waiyed, if not deniorred to. — An objection to the joinder of the different 
causes of action must be taken by demurrer ; otherwise the objection is waived. 
Finley v. Hayes, 81 — 368. 

Objection can not be taken by motion*— The objection that causes of ac- 

lion have been improperly united must be taken by demurrer, and can not be 
raised by motion. McMillan v. Edwards, 75 — 81. 

By answer, if the objection does not apuear on tlieface of the com- 
plaint. — A misjoinder of parties or of causes of action is a ground of demurrer, 
or it can be taken advantage of by answer, when the demurrable matter does 
not appear on the face of the complaint. Burns v. Ashworth, 72 — 496. 

12 



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go CLARK'S CODE OF CIVIL PROCEDURE. 

Union of different breaches of an administration bond in one action. 

In an action against an administration bond, different breaches may be set up by 
different parties uiiiting in the same action. Hoover v. Berryhill, 84 — 132. 

Suit upon two official bonds in one action. — Nor is a complaint demurra- 
ble because the action is brought upon two official bonds (given by the same 
officer) against the principal and such of the sureties as are common to both 
bonds. Syme v. Bunting, 86 — 175. 

Injuries caused by separate action of several persons. — Where an injury 

is caused by the separate action of several persons whose interests are adverse to 
the plaintiffs, they may all be joined as defendants in an action for damages, re- 
sulting from such acts. Long v. Swindell, 77 — 176. 

Joinder of a guarantor witii the maker and endorser of a note.— A 

party, who writes his name across the back of a note after judgn^nt has been 
obtained against both the maker and endorser, if he makes any contract at all 
with the endorsee, becomes a guarantor, and a cause of action against him, as 
such, can not be joined with one against the maker and endorser. Wooten v. 
Maultsby, 69 — 462. 

Action against one who was both grnardian and administrator of an 

infant* — A complaint in an action against a defendant who was both guardian 
and administrator of an infant in his double capacity is not demurrable for mis- 
joinder of causes of action. Alexander v. Wolfe, 83 — 272. 

Action against grnardian npon his bond. — An action against a former 
guardian upon his bond, which alleges a failure to account for funds received, 
and also a fraudulent combination to dispose of the real estate of his wards, is 
not a misjoinder, since both liabilities arise out of the same transaction, to-wit : 
tlie guardianship. Adams v. Quinn, 74 — 359. 

Foreclosore of mortg^ageand ejectment. — An action to foreclose a mort- 
gage on one tract of land can not be united with a cause of action to recover pos- 
session of another tract, in the same complaint. Edgerton v. Powell, 72 — 64. 

Demands for seyeral reliefs.-—A complaint asking i. That a decree be set 
aside for fraud. 2. To annul deeds executed to purchasers by a commissioner 
appointed under the decree to sell the lands. 3. To recover possession of the 
lands and the rents and profits thereof. 4. For an injunction ; is not demurrable. 
It is substantially one cause of action for which several reliefs are asked. Eng- 
land V. Gamer, 86 — 366 ; Young v Young, 81 — 91. 

A complaint is not demurrable for joining a cause of action upon a debt and 
to declare void conveyances made by the debtor in fraud of the complaining cred- 
itor. Bank v. Harris, 84 — 206. 

Joint snit by seyeral creditors to subject property of their common 
debtor. — Where creditors affected by the fraud of a common debtor in the con- 
veyance of his property join in one action to subject the same to the payment of 
their debts, a demurrer that several causes of action have been improperly joined 
will not be sustained. Mebane v. Layton, 86 — 571. 

Joiningr demand for rents with petition for partition. — An application 
for a partition of lands joined with a demand for rents and profits converted by 
certain of the tenants in common is not a joinder of a demand in tart with one 
on contract and demurrable. Finch v. Baskerville, 85 — 205. 

Joininj^ action for tort and for false warranty.— Complaint for a tort, 
to which is annexed a cause of action for a false warranty, is not demurrable for 
a misjoinder of causes of action. Ashe v. Gray, 88 — 190. 

What causes of action may be Joined. — Causes of action, belonging to any 
one of the classes mentioned in § 267, may be united in one complaint, but no 
two belonging to different classes ; so that a complaint which alleges a cause of 
action arising upon contract and also a cause of action in tort is defective. North 
Carolina Land Co. v. Beatty, 69 — 329 ; Chamberlain v. Robertson, 7 Jon., 12. 

See cases cited under § § 267 and 272, post. 



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CLARK'S CODE OF CIVIL PROCEDURE. 9I 

(6). That the complaint does not state facts sufficient to 
constitute a cause of action. 

General demarrer. — A general demurrer will be disregarded. Love v, 
Com'rs, 64 — 706 ; George v. High, 85 — 99 ; Bank v. Bogle, 85 — 203 ; Jones v. .4 

Com'rs, 85 — 278. N A Cv>^^*^ ^ V 

Objectiou taken by motioQ in tJie sapreme court.— -Objection to a com- L j,^ 

plaint that it does not slate facts sufficient to constitute a cause of action may be f y 
taken by motion in the supreme court. Tucker v. Baker. 86 — i. J /^ /V^^^ i\^\ 

Motion to dismiss in the saperior court. — Where a demurrer that the com- 
plaint does not state a cause of. action is overruled, the same point can not be 
again presented by a motion to dismiss, Wilson v. Lineberger, 82 — 412. 

To dismiss plaintiff's action after answer filed by the defendant on the ground 
that the complaint does not state facts sufficient to constitute a cause of action is 
contrary to the course of the courts. Such objection must be taken by demurrer. 
Wilson V. Sykes, 84-— 215. 

Frivolous demurrer. — A demurrer to the complaint in an action for the 
recovery of land on the ground, (i) failure of plaintiff to set forth his title ; (2) 
to allege an ouster by defendant, or (3) to aver a demand for possession and 
damages before action brought, or (4) to allege a notice to quit before suit 
brought, or (5) to assert a possession in the plaintiff and those under whom he 
claims within twenty years before action brought is frivolous. Johnston v. Pate, 
83—110. 

A demurrer to a complamt in an action by an executor because it does not 
allege that the probate of will and qualification was before suit brought is frivo- 
lous, when it is alleged in the complaint that it was before complaint JiUd, 
Hurst V. Addington, 84 — 143. 

No obligee named in a bond. — Where an obligor by a bond pledged him- 
self to be responsible for the payment of a note naming the payer and payee 
thereof, a demurrer that no obligee was named in the bond was overruled. 
Leach v. Fleming, 85 — ^447. 

Complaint statiugr conclusions of law.— A complaint stating merely 
conclusions of law, and not the facts from which they are drawn, is demurrable. 
Moore v. Hobbs, 79 535 ; Boyden v. Achenbach, 79 539. 

Complaints stating a sufficient cause of action.— A complaint which 

alleges that in 1863 the judge of the superior court for the county where plain- 
tiff's testator resided made a violent charge to the grand jury in regard to receiv- 
ing Confederate money for debts, threatening to imprison any who refused to do 
so, and upon motion of a judgment debtor of plaintiff's testator, allowed him to 
have satisfaction of the judgment entered by paying into court the amount in 
Confederate money, nnd sent word to plaintiff's intestate that if he did not 
receive the Confederate money and make the deed he would have him sent to 
Richmond, and that his intestate being old and infirm, and in great fear, received 
the money and made the deed, held, on demurrer to set forth a good cause of 
action against the purchaser of the land. Harshaw v. Dobson, 64 — 384. 

A will giving ** unto my wife Lovey the use and benefit of all my estate real 
and personal during her life," and also empowering her " to lay out all the sur- 
plus funds, consisting of notes and cash, in land for her especial use and benefit 
during her natural life, and, after her death to be given to my niece Mary 
Jane, also a county claim of the following amount, §2,573.21 to be appro- 
priated as above " gives a remainder in the "surplus funds" to Mary Jane, 
whether they were invested in lands or not, and a complaint setting forth the 
facts, in an action brought by the niece, after the death of the widow, is good. 
Charles v. Kennedy, 64 — 442. 

Where a guardian lent trust funds to a firm of which he was a member, and 
took their note payable to himself, though he could not under the old system sue 
upon it at law, an action may now be maintained on it by the husband of the 
ward to whom it has been assigned. Gudger v. Baird, 66 — 438. 



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In an action for daniages for trespass on real < property, it is not necessary to 
describe the premises by metes and bounds to constitute a cause of action. 
Whitaker v. Forbes, 68—228. 

The vendee of goods contracted to be delivered at a certain time and of a spe- 
cific quality, may recover for any defect in quality, although he may have received 
and used the goods, if he did not discover that they were of inferior quality in 
time to return them without prejudice to himself. Cox v. Long, 69 — 7 ; Howie 
V. Rea, 70—559- 

A complaint by a husband, which states that he was married to his wife in 
1841, has had several living children by her, and that she acquired land by deed 
in 1864, is sufficient to show him to be tenant by the courtesy initiate, and he 
may recover the possession by action in his own name, though he can not lease 
without the consent of the wife. Wilson v. Arentz, 70 — 670. 

In an action to recover cotton claimed as rent, the allegation of a contract be- 
tween A and B, by which A was to cultivate all the land he could with one horse, 
and pay B as rent two bales of cotton — no part of the crop to belong to A until 
the rent was paid — constitutes A a cropper and not a tenant, and entitles B to 
recover possession of the crop from him. Haywood v, Rogers, 73 — 320. 

A complaint alleeing that the defendant was the guardian of the plaintiff, has 
never settled with him, and while such guardian fraudulently contrived to convey 
away the plaintiff's lands, states a good cause of action for an account and set- 
tlement, although it also appears on its face that the defendant has been removed 
from the guardianship. Adams v. Quinn, 74 — 359. 

That the administrator of an executor has funds in his hands belonging to the 
estate of his intestate's testator, is a good cause of action in a suit brought by a 
legatee to have him declared a trustee for her benefit. McFarland v. McKay, 
74—258. 

In an action against the sheriff for a penalty for making a false return, it is 
not necessary that it shotffd be alleged to have been ** wilfully," " fraudulently" or 
** intentionally " false. The fact that it allies the return to be false is sufficient. 
Peebles v. Newsom, 74 — 473. 

Where lands are devised to a daughter A for life and to her children, should 
she have any to live to become twenty-one years old, and on failure of children 
to arrive at that age, then to B, a grandson of testator, a complaint setting forth 
that A is fifty-two years of age, has been married twelve years and had no child, 
and is in possession of the lands and committing and threatening waste thereon, 
is a good complaint in an action by B to restrain further waste. Gordon v. 
Lowther, 75—193. 

A complaint alleging that the plaintiff waived his right to a homestead by pa- 
rol and surrendered possession to a purchaser for value and without notice, 
shows that he still has a right of homestead, but the same not having been laid 
off by metes and bounds, the court can not grant a writ of possession. Little- 
john V. Egerton, 76 — 468. 

In an action to foreclose a mortgage, made by husband and wife, to secure a 
note of the wife given for a debt of the husband, though the note was not made 
with the written consent of the husband, a demurrer that the complaint does not 
state a cause of action against the wife, is not good. Newhart v. Peters, 
80—167. 

A complaint in an action by a creditor to declare void conveyances made by 
the debtor in fraud of the complaining creditor is not demurrable for failure to 
allege that the debtor has not other property sufficient to satisfy the claim. Bank 
V. Harris, 84 — 206. 

In an action by an administrator against the distributees upon their refunding 
bonds, the complaint is not demurrable for failing to set forth an account of the 
administration. Lowery v. Perry, 85 — 131. 

Complaintsnotstatingrasofticieiitcaaseof Action.- A complaint in an 
action against a county, which does not allege that the claim of the plaintiff was 
presented to the board of commissioners and either allowed by them, or its audit 
refused, and, if allowed, that it was presented to the county treasurer and pay- 



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CLARK'S CODE OF CIVIL PROCEDURE. 93 

ment refused, does not state a sufficient cause of action. Love v. Com'rs of 
Chatham Co., 64 — 706 ; Jones v. Com'rs of Bladen Co., 73 — 182. 

A complaint setting forth as a cause of action the fact that an irregular judg> 
ment has been granted against the plaintiff and in favor of the defendant, and 
execution issued thereon, in another action, is demurrable. The proper remedy 
is by motion to set aside the judgment in the original cause. Foard v. Alexan- 
der, 64—69. 

Where it appears by the complaint that the county court in 1863 gave the 
note sued on to obtain money to buy salt for the inhabitants of the county, which 
article had become very scarce on account of a stringent blockade, such note 
is void as being given in aid of the rebellion, and a demurrer to the complaint 
should be sustained. Leak v. Com'rs of Richmond Co., 64 — 132. 

When it is provided by statute that certain powers might be exercised by the 
county courts, a majority of the justices being present, in setting up a right re- 
sulting from such action, it is necessary to allege the presence of such majority, 
in order to constitute a cause of action. Ibid. 

The allegations that A contracted to sell a certain tract of land to B, who 
paid a part of the purchase money, entered upon the land and then sold to C — 
the land being afterwards sold under execution against A, and purchased by D — 
do not constitute a sufHcient cause of action in favor of D, seeking to be subro- 
gated to the rights of A in the contract of sale ; since no equity can -be sold at 
execution unless it be such as draws to it the legal estate, which it can not do 
when other equities have attached. Tally v. Reid, 72 — 336. 

When the complaint showed that the father of certain of the defendants had 
conveyed the lands sued for in fraud, during his lifetime, and said defendants 
were not in possession, and were not alleged to have made any claim thereto, 
held, on demurrer, that it stated no cause of action as to them. Wall v. Fairley, 
73—464. 

A complaint against a sheriff and his bondsmen for a failure to collect the taxes 
due ujpon a list, which came into his hands previous to the execution of such bond 
and (luring a prior term of office, as sheriff, does not state facts sufficient to con- 
stitute a cause of action. Coffield v. McNeill, 74 — 535. 

A complaint alleged that the agent of the defendant agreed to insure the life 
of the plaintiff's intestate for six months, for the sum of fifty dollars ; that the 
said intestate paid to said agent the sum of forty-five dollars on said agreement. 
No written application was made and no policy issued. The balance of the fifty 
dollars was not alleged to have been paid and no reason assigned why it was not, 
held, on demurrer, not a sufficient cause of action. Barnes v. Piedmont Insur- 
ance Co., 74 — 22. 

Lands devised to A, B and C for life, and at their death to their children, in 
fee ; held that A and B, having died without issue, C has a life estate in the en- 
tire tract, and the heirs of the devisor have no right to partition during his life. 
Powell V. Allen, 75 — 450. 

The claim of the University, under chapter 236 of the laws of 1874-75, to 
** all dividends of corporations not recovered or claimed by suit by the parties 
entitled thereto, within five years from the time they are declared," is unconsti- 
tutional and a complaint based on it is demurrable. University v. N. C. R. R. 
Co.. 76 — 103. 

If an executor, after the lapse of a sufficient time for settling the estate of his 
testator, voluntarily delivers possession of the property of his testator to a l^a- 
tee, he is presumed to have assented to the legacy and must allege special circum- 
stances to prove that he was in no default, to recover it back. In such a case, 
where such circumstances do not appear in the complaint, held, on demurrer, 
not a sufficient cause of action. Bumpass v. Chambers, 77 — 357. 

An action by devisees and legatees, for a settlement of the estate against the 
children, and next of kin, and heirs-at-law of the deceased, (the executor being 
dead,) is demurrable. Netherton v. Candler, 78 — 88. 

A complaint in an action by a board of commissioners, upon the official bond 
of a tax-collector, is demurrable, if it fail to set forth directly (not merely as re- 
cital) that the treasurer improperly neglects or refuses to sue. Commissioners of 
Pender v. McPherson, 79 — 524. 



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In an action upon a contract, an answer of the defendant which aUeges that 
the execution of the contract was induced by the false representations of the 
plaintiff, but does not allege that he was thereby deceived, is demurrable. Foy 
V. Haughton, 83 — 467. 

Sec. 240, Demurrer must specify grounds of objection, C. 
C. -P., 8. 96. 

The demurrer shall distinctly specify the grounds of ob- 
jection to the complaint. Unless it does so, it may be dis- 
regarded. It may be taken to the whole complaint, or to 
any of the alleged causes of action stated therein. 

Thedemarrer must be special. — A general demurrer that '* the complaint 
does not contain facts sufficient to constitute a cause of action ** should be over- 
ruled, or rather, disregarded. Every demurrer which does not distinctly specify 
the ground of objection must be disregarded. Love v. Com'rs of Chatham Co., 
64 — 706 ; George v. High, 85 — 99 ; Bank v. Bogle, 85 — 203 ; Jones v. Com'rs, 
83—278. 

But such an objection can be taken ore tenus in the supreme court. Tucker 
v. Baker, 86—1. 

Where there is onlj one cause of action* — When there is but one cause 
of action or but one defence, a demurrer must cover the whole ground, or it will 
be a nullity. State v. Young, 65 — 579. 

Where there are several causes of action.— A defendant may answer to 

some of the causes of action in the complaint and demur to others, but he can 
not answer certain allegations and demur to others, in the same cause of action 
or defence. Ransom v. McClees, 64 — 17. 

A demurrer may be to a new cause of action introduced by an amendment and 
without alleging a misjoinder. Finch v. Baskerville, 85 — 205. 

Argromentatiye pleading. — Argumentative pleading is demurrable ; the 
error however should be distinctly pointed out. Crump v. Mims, 64 — 767. 

DefectlTe statement of a cause of action. — Where there is a defective 
statement of a cause ot action, objection must be taken in apt time. It is too 
late after an answer is filed. Garrett v. Trotter, 65 — 430. 

The Judge niitre()uired to specify ground for overruling a demurrer. 

— A judge is not required to specify the ground of his ruling upon a demurrer 
where several causes are assigned, though it would be more convenient for him 
to do so. Johnston v. Smith, 86—498. 

Sec. 241. Objection not ajypearing on cotnplaint. C. V. P., 

s. 98. 

When any of the matters enumerated as grounds of de- 
murrer do not appear on the face of the complaint, the ob- 
jection may be taken by answer. 
If no demurrer^ objection must be by answer.— If the ground of objection 

to the complaint does not appear upon its face, it can only be taken advantage 
of by answer. Moore v. Hobbs, 77 — 65. 

In an action of trespass vi et armis begun before the adoption of the Code 
and tried afterwards, the defendant not having availed himself of objection to 
the non-joinder of a plaintiff by demurrer under § 239, ante^ or by answer under 
this section of the Code, can not do so under the plea of the general issue' 
Lewis V. McNatt, 65 — 63. 

In an action to recover land the objection for a misjoinder of causes of action 



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* * in that two tracts which did not adjoin were embraced in the same cause of 
action " must be taken advantage of by demurrer, if it appear on the face of the 
complaint, and if not, by answer, and can not be raised by a motion to submit 
an issue to the jury. Durham v. Bostwick, 72 — 353. 

After the defendant had answered and the case had come on for trial, he moved 
to dismiss for misjoinder of causes of action. The court say : As the defendant 
did not take the objection by answer or demurrer, but answered over to the 
merits of the action, to tolerate the motion would be to allow the violation of the 
best principles of good pleading. It was too late to demur, and there is no rule 
which allows this objection to be taken by motion, at any stage of the action. 
Bums v. Ash worth, 72 — 496. 

Sec, 242. Objection when deemed waived. €. C. P., s. 99. 

If no such objection be taken either by demurrer or an- 
swer, the defendant shall be deemed to have waived the 
same, excepting only the objection, to the jurisdiction of 
the court, and the objection that the complaint does not 
state facts sufScient to constitute a cause of action. 

See Lewis v. McNatt, 65 — 63; Bums v. Ashworth, 72 — 496, and Durham v. 
Bostwick, 72 — 353, cited under preceding section. 

An answer waifes a demorrer* — If a defendant answers and demurs to 
the same cause of action at the same time, the answer waives the ground of de- 
murrer. Ramsour V. M cClees, 64 — 17. 

Walrer. — The pendency of a former action, unless set up by answer or oth- 
erwise before trial, is waived. Hawkins v. Hughes, 87 — 115. 

The objection that there is a misjoinder of causes of action must be taken by 
demurrer or it is deemed to have been waived. Durham v. Bostwick, 72 — 353; 
Burns v. Ashworth, 72 — 496. 

In an action where the defendant moved to dismiss the complaint because 
the court had no jurisdiction, Bynum, J., says : ** By the present system of 
pleading the objection to the jurisdiction can now be taken only by answer or 
demurrer, ike demurrer being either Tvrilten or ore tenus.** Pescud v. Hawkins, 
71—299. 

Not waifed* — Whenever it shall appear to the court that a cause of action 
is not stated in the complaint, the action should be dismissed. McDougald v. ^ v ^ 

Gfaham, 75 — 310. ^' »' ^ " * 

Jy^ defence not pleaded in apt time is not waived if the complaint is so defect-?* ^ ^ 

Qve that no judgment can be given on it. Pearce v. Mason. 78 — 37, J ^ ^i » ^ ^^,^^ 

Motion in arrest of jadgment* — If no demurrer is filed, when the com- 
plaint does not state facts sufficient to constitute a cause of action, the objec- 
tion can still be raised by a motion in arrest of judgment. Love v. Comm'rs, 
64—706. 

Otjeetion can be taken ore tenus in tlie sapreue court.— The objec- 
tion that the complaint does not state facts sufficient to constitute a cause of ac- 
tion may be taken by a motion to dismiss in the supreme court. Tucker v. 
Baker. 86 — i; Bryant v. Fisher, 85 — 71. 

And this is true, though a general demurrer on that ground would be prop- 
erly overruled by the court below. Jones v. Com'rs, 85 — 278. 

Aider express or implied* — When, in an action to recover land, the com- 
plaint did not slate that the premises in controversy were wrongfully withheld, 
and the defendant did not demur nor raise the question by answer, but an- 
swered generally, claiming a ri^ht to hold the land ; held, that the doctrine of 
aider by admissions express or implied, is an essential element of every system 
of pleading, and that the claim of title in the answer waived the defect in the 
complaint. Garrett v. Trotter, 65 — 430. 



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Court may dismiss on motion or ex mero iwofu.— Whenever a defect 
of jurisdiction becumes apparent in any case, the court may, on plea, sugges- 
tion, motion or ex meto motu, stop the proceedings and dismiss the action. 
State V. Benlhal, 82—664; Burroughs v. McNeill, 2 Dev. & Bat. Eq., 297; 
Branch v. Houston, Bus., 85; contra, Pescud v. Hawkins, 71 — 299. 



CHAPTER THREE. 
THE ANSWER. 



Section. 

243. Answer; what to contain. 

244. Counterclaim. 

245. Several defences. 



Section. 

246. Demurrer and answer. 

247. Sham and urrelevant de- 

fences. 



Sec* 243. Answer; what to contain. C C P., «. 100. 

The answer of the defendant must contain : 
(1). A general or specific den.al of each material allega- 
tion of the complaint controverted by the defendant, or of 
any knowledge or information thereof, suflScient to form a 
belief. 

Each allegation mnst be separately denied. — The answer must contain a 
general or specific denial of ^<if^material allegation of the complaint. That is 
to say, it must deny either the wAo/e of each material allegation or some materiai 
and specific part thereof. Therefore, an answer which avers that •* no allega- 
tion of the complaint is true " is bad. Such a plea is not issuable, and is a sham 
plea which the court should strike out on motion. Flack v. Dawson, 69 — 42; 
Schehan v. Malone, 71 — 440. 

An answer which sets out that ** no allegation of the complaint is true " is 
bad. The defendant must separately answer each allegation of the complaint, 
by a general denial either of the whole allegation (not the whole complaint) or 
by a specific denial of some selected or specific part of the allegation. Heyer v. 
Beatty, 76—28. 

Tlie denial mnst be of ^^soffieient information " as well as of knowl- 
edge. — An answer that denies the defendant's knowledge of a fact alleged in 
the complaint, but which does not deny that he has " information sufficient to 
form a belief, " is insufficient. Durden v. Simmons, 84 — 555. 

Action to recover land* — In answer to a complaint in an action to recover 
land, the defendant may disclaim title to part of the tract sued for and deny 
possession of such part, admitting his possession of the other part, claiming title 
thereto, and denying his possession thereof to be wrongful. Graybeal v. 
Powers, 83 — 561. 

Denial on information and belief.— The statement by defendants, on in- 
formation and belief, that the plaintiff never had possession of the land claimed 
by defendants, is a sufficient denial of the allegation of possession. Kitchen 
V. Wilson, 80 — 192. 



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FrlTOlons answer* — An answer should never be held frivolous unless it be 
so clearly and palpably bad as to require no argument or illustration to show its 
character. Hull v. Carter, 83 — 249. 

A frivolous answer is one which is manifestly impertinent as alleging matter 
which, if true, does not affect the right to recover, brogden v. Henry, 83 — 274. 

Where an answer is put m in good faith and is not clearly impertinent, the 
defendant is entitled to have the facts alleged in it either admitted by demur- 
rer or tried by a jury. Womble v. Fraps, 77 — 198. 

Not frivoloas answers. — If the defences set up in the answer are worthy of 
serious consideration, they are not frivolous. Swepson v. Harvey, 66 — 436. 

AH answer that the defendant has ** no knowledge or information sufficient 
to form a belief '* as to certain material allegations of the complaint, raises a 
sufficient issue and can not be stricken out as frivolous. Bank v. City of 
Charlotte, 75 — 45. 

Where three, only, out of four executors were sued on an obligation of their 
testator, and answered, setting forth that fact, held, that the answer could not 
be set aside on motion as frivolous. Erwin v. Lowery, 64 — 321. 

Does not applj to the reply. — This section relates only to the answer. 
The reply is governed by § 248. Boyett v. Vaughan, 79 — 528. 
See also same case, 85 — 363. 

(2). A statement of any new matter constituting a defence 

or counterclaim, in ordinary and concise language, without 

repetition. 

Connterclaim mnst be set np In the answer*— The new matter consti- 
tuting a defence or counterclaim must be set up in the answer, and can not be 
taken advantage of in any other manner, Johnson v. Bell, 74 — 355. 

Counterclaim Is really a counter action bronffht by the defendant.— A 

counterclaim is a distinct and independent cause of action, and when properly 
stated as such, with a prayer for relief, the defendant becomes, in respect to the 
matters stated by him, an actor, and there are two simultaneous actions pend- 
ing between the same parties, wherein each is, at the same time, a plaintin and 
defendant. Francis v. Edwards. 77 — 271. 

When the plaintiff files his complaint setting forth any ** transaction," 
whether it be a tort or a contract, the defendant may set up any claim which 
he has against the plaintiff, connected with such transaction, and the plaintiff 
ean not, by calling the transaction in his complaint by one name or another, 
cut off the defendant's counterclaim growing out of it. Bitting v. Thaxton. 
72—541. 

Indiridaal indebtedness of members of a partnership*— When a defend- 
ant is sued on a debt due a partnership, he may set off against it the individual 
indebtedness of one or all the partners to himself. Sloan v. McDowell, 
71—356. 

Frand or mistake a yalld counterclaim. — Where a horse, exchanged for 
land, returned to its first owner, upon action brought to recover possession, 
held, that fraud in the sale of the land for which it had been exchanged was a 
valid counterclaim against the party obtaining the horse by such fraud. Walsh 
v. Hall, 66 — 233. 

The allegation of fraud or mistake in the consideration of the bond sued on 
could not be set up as a defence at law, but would be ground for relief in equity. 
It is, therefore, a vaid counterclaim in an action on the bond. Hall v. Com'rs 
of Guilford Co., 74 — 130. 

Note assigned after matnriiy* — A note assigned after maturity is subject, 
in the hands of the assignee, to any set-off or other defence existing at the time 
of the assignment, or before notice thereof, against the assignor. Harris v. 

13 

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98 CLARK'S CODE OF CIVIL PROCEDURE. 

Burwell, 65 — 584; Martin v. Richardson, 68 — 255, overruling McConnaughey 
V. Chambers, 64 — 284, and Neal v. Lea, 64 — 678. 

Note assigned before matarity* — A negotiable note, endorsed before ma- 
turity, is not subject, in the hands of the endorsee, to a set-off in favor of the 
ms^ker, of a debt due by the payee at the time the note was made ; and the pre- 
sumption of law is that the holder of negotiable paper takes it for value and 
before dishonor, and that an undated endorsement was made at the dale of the 
note. Tredwell v. Blount, 86 — 33. 

Assigrnment of non- negotiable paper. — An assignee for value of non- 
negotiable paper, who takes it even before due, and without notice of equ^ies 
between prior parties thereto, holds it subject to all equities and counterclaims 
existing at the lime the maker received notice of the assignment. Bank v. 
Bynum, 84 — 24. 

In an action on a bond to make title. — In an action for damages for non- 
performance of a bond to make title a note given to one of the obligors to in- 
duce her to submit to privy examination can not be set up as a counterclaim. 
Utiey V. Foy, 70—308. 

Where sole defence is a counterclaim which is ruled out.— Where the 

only defence to an action is a counterclaim, which is ruled out as inadmissible, 
the plaintiff is entitled to judgment. Love v. Rhyne, 86 — 576. 

Usurj. — In an action for claim and delivery of persohal property conveyed 
in a mortgage, the defendant can set up as a defence that the note secured by 
the mortgage was given for usurious interest. Moore v. Woodward, 83 — 531. 

Usurious interest previously received in the course of renewals of a series of 
notes terminating in one, upon which suit is brought, can not be pleaded by 
way of set-off or payment. Oldham v. Bank, 85 — 241. 

No counterclaim for purchase money, when.—Where the husband of a 
feme covert does not join m a deed of her land, and her privy examination is not 
taken, the deed is a nullity, and the vendee can maintain no counterclaim 
against the woman personally for the purchase money paid by her, nor for bet- 
terments. Scott V. Battle. 85 — 184, overruling Daniel v. Crumpler, 75— *t84. 

Purchase at mortgage sale. — While purchasers under a mortgage sale are 
affected with notice of a defect in mortgagor's chain of title, and can not claim 
for betterments as such^ they are entitled to an equitable allowance against the 
demand of the real owner for rents and profits. Scott v. Battle, 85 — 184. 

Counterclaim upon cancellation of deed for duress.— Upon cancellation 

of a deed alleged to have been executed under duress, while the plaintiff is en- 
titled to a restoration of the land, with compensation for its use and for dam- 
ages sustained, the defendant is entitled to a counterclaim for the increased 
value by reason of improvements put by him on the land, and for the purchase 
money. Reed v. Exum, 84 — 430. 

k counterclaim cannot be pleaded in reply to a counterclaim.— A 

plaintiff cannot set up a counterclaim in reply to a counterclaim pleaded by the 
defendant. Boyett v. Vaughan, 85 — 363, overruling Boyett v. Vaughan, 
79—528. 

Claim purchased by a debtor after a general assignment by tlie cred- 
itor. — A claim assigned by the creditor of a firm after the registration of a deed 
in trust, executed by the firm to a trustee to pay debts, is not a counterclaim in 
an action by the trustee. The assignee of such claim is only entitled to share, 
as the creditor would have been, in the/r<> rata distribution of the assets when 
collected. Brown v. Brittain, 84 — 552. 

Before a justice of the peace. — No counterclaim can be entertained by a 
justice of the peace, the amount of which exceeds his jurisdiction. Boyett v. 
Vaughan, 85 — 363 ; Meneely v. Craven, 86 — 364; and no amendment will be 
allowed in the superior court after appeal, which operates to increase the sum 
demanded beyond the justice's jurisdiction. Ibid. 

Neither a justice of the peace nor the superior court on appeal has jurisdic- 



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CLARK'S CODE OF CIVIL PROCEDURE. 99 

tion of a counterclaim in damages assessed at over, though voluntarily reduced 
to, $200. Raisin v. Thomas, 88— 148. 

Olalin SOttuding !ll damages. — It seems that a claim sounding in damages 
could be used as a set-off. Raisin v. Thomas, 88 — 148. 

Action begun before €• €• P. — In an action of ejectment begun before the 
adoption of the Code, and tried afterwards, the defendant can not set up an 
equitable counterclaim under this section. Gaither v. Gibson, 63—93. 

But this does not prevent the equitable owner of land from demanding spe- 
cific performance, notwithstanding the action was instituted prior to 1868. 
Young V. Griffith, 79 — 201. 

Sec. 244, Counterclaim. C. C. P.. ». 101. 

The counterclaim mentioned in the preceding section 
must be one existing in favor of a defendant, and againsta 
plaintiff, between whom a several judgment might be had 
in the action, and arising out of one of the following causes 
of action : 

(1). A cause of action arising out of the contract or trans- 
action set forth in the complaint as the foundation of the 
plaintiff's claim, or connected with the subject of the 
action. 

Coanterclalm in reply to counterclaim.— New matter having no connec- 
tion with the matter alleged in the complaint or the new matter alleged in the 
counterclaim can be set up in the reply, if not inconsistent with the complaint. 
Boyett v. Vaughan, 79 — 528. Overruled by Boyett v. Vaughan, 85 — 363, 
which holds that a counterclaim can not be pleaded in reply to a counterclaim. 

Eqaitable defence.— rin an action to recover land, where both parties claim 
under the same grantor, the defendant, being in possession under the the junior 
deed, can set up as an equitable defence a demand to have the plaintiff 's deed, 
which is older in point of time, set aside for fraud; otherwise, if the action was 
begun before the C. C. P. Johnson v. McArthur, 64—675. 

Damagres* — Damages to realty are not a couf)terclaim to an action on con- 
tract for payment of money. Street v. Bryan, 65—619. 

Damages for a breach of a covenant not to sue may be set up as a counter- 
claim. Russell V. Adderton, 64 — 417. 

Coyenant not to sne. — A covenant not to sue the defendant may be made 
available by the latter, by way of counterclaim, to defeat an action brought in 
violation thereof. Harshaw v. Woodfin, 64 — 568. 

Continirent liability of surety.— The surety to an insolvent debtor can not 
be compelled to pay a debt he owes his principal until relieved of the respon- 
sibility of his suretyship, and he may plead this as a counterclaim against his 
principal or his assignee with notice, and this though the principal has been ad- 
judged a bankrupt and such debt has been assigned him in nis exemptions. 
Scott V. Timberlake, 83 — 382. 

This defence will avail the surety equally against an assignee of the note past 
due when assigned, or assigned with notice. Walker v. Dicks, 80 — 263. 

Assigrnment. — For equities and set-offs attaching to notes and bonds, not- 
withstanding an assignment, see Harris v. Burwell, 65 — 584: Bank v. Bynum, 
84 — 24, and other cases cited under the last section. 

Hon-soit. — A non-suit is not permissible where a counterclaim has been set 
up by the defendant. Pumell v. Vaughan, 80 — 46. 



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lOO CLARK'S CODE OF CIVIL PROCEDURE. 

Action by personal representatire.— In an action by the personal repre- 
sentative of the owner, for claim and delivery of a horse, against the bailee, the 
defendant can not set up as a counterclaim the debt due him for feeding and 
taking care of the horse. Mauney v. Ingram, 78 — 96. 

Foneral expenses. — A claim for funeral expenses can be pleaded as a set- 
off, in a suit brought by the personal representative, for a debt due ihe de- 
ceased. Barbee v. Green, 86 — 158. 

Legacy. — A legatee can set up an account due him from an estate as a coun- 
terclaim to a suit on a note due by him to the executors. Whedbee v. Reddick, 
79—521. 

Agrreement with the administrator.— Where a party bought at an admin- 
istrator s sale under an agreement that the administrator was to take and pay 
for part of the articles purchased, and the purchaser executed his note for the 
whole amount, held, that this agreement can be pleaded in a suit by the admin- 
istrator on the note as a counterclaim for the part of the purchases the admin- 
istrator agreed to pay for. Clark v. Clark, 65-655. 

Want of consideration in a deed.— 5>w^/^. the defence that a deed, upon 
which an action to recover land is based, is without consideration, is not open 
to any but creditors and purchasers for value. Ivey v. Cranberry, 66 — 223. 

Action to recOYer land.— Where a vendor of land brings an action for pos- 
session against his vendee, who has been let into possession, the title being re- 
served ; the latter may set up the contract of sale, and ask for an account of 
the payments upon the purchase money by counterclaim in the satne action. 

wt ^* ^*y^P» 64—549 ; Wellborn v. Simonton, 88—264. 

Where a deed is set aside on the ground of having been made under duress, 
while the plaintiff recovers the land with rents and profits, the defendant is en- 
titled to a counterclaim for the increased value of the property from the im- 
provements put on the land by him, and the purchase money. Reed v. Exum, 
84—430. 

Pleading of COnnterclaim optional.— A defendant is not bound to assert 
a counterclaim in an action brought against him, nor will the plaintiff's recov- 
ery bar a subsequent action on a cause of action which he might have set up as 
counterclaim but did not. Woody v. Jordan, 69—189. 

An a^OSted acconnt.— A claim for services, when once adjusted and allowed 
bv the parties, can not be attacked for illegality, when presente<f as a counter 
claim against the assignee of the party for whom the services were rendered. 
Lusk V. Patton, 70 — 701. 

Inadequacy of consideration.— Mere inadequacy of consideration, without 
traud or imposition, is no defence to a suit on a bond ; nor is it an objection, 
even when equity is invoked to enforce specific performance ; and much less is 
It an objection when it is invoked to relieve against a contract. Winslow v. 
Wood, 70—430. 

Counterclaim must exist when action brought.- A counterclaim must ex- 
ist at time of bringing action. Hogan v. Kirkland, 64—250. 

An answer setting up a counterclaim but which fails to allege that the same 
subsisted between the parties when the action begun, or arose out of, or was 
connected with, the subject of the plaintiff's action, is demurrable. Reynolds 
v. Smathers, 87—24. 

Title in a third person.- The defendant in claim and delivery can not set 
up as a counterclaim that the title to the properly is in a third person. Holmes 
v. Godwin, 69 — ^467. r r / f 

Sheriir.— To a motion to amerce a sheriff for not executing summons, he can 
set up as a defence that his fees had not been paid. Johnson v. Kennedy, 

thl^""^®'"^^?*™ (?/ damages to the reversionary interest.— In a suit by 

me grantor 01 a life estate upon a bond for the purchase money thereof, the 
piamtmand defendant being tenants in common of the reversion, the defendant 



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CLARK'S CODE OF CIVIL PROCEDURE. lOI 

can not set up a counterclaim for damages done by the plaintiff to the inheri- 
itance by cutting timber before the sale to the defendant. Devries v. Warren, 
82—356. 

Set-off. — The defence of set-off is merged in counterclaim. Neal v. Le«, 
64—678. 

Sail bj the state* — A person indebted to the state, when sued upon such 
indebtedness, can not set up as a counterclaim the indebtedness of the state to 
him upon past due coupons of its bonds. Battle v. Thompson, 65 — 406. 

Action for goods sold and delivered* — In an action to recover the price of ^ ' 
goods sold and delivered, the defendant may set up as a counterclaim that the ^ /« 
goods were not such as he contracted to receive ; since he might have had an 
action for damages therefor, even though he had received and used the goods. 
Howie v. Rea, 70—559; Cox v. Long, 6g — 7. 

False representations* — If representations made by one party to a contract* 
which may be reasonably relied on by the other, constitute a material inducement 
to the contract, are knowingly false, cause loss to the party relying on them ; 
and such other party has acted with ordinary prudence, he is entitled to equita- 
ble relief upon such counterclaim. Walsh v. Hall, 66^233. 

Conversion of personal property of married woman* — Where the pur. 
chaser of the separate personal property of a married woman sold under execu- 
tion for a debt of her husband is sued after the wife's death by the husband as 
administrator for such conversion, be can not set up as a counterclaim his claim 
to be reimbursed the amount of his bid at such sale. Holiday v. McMillan, 
83 — 270. 

Action for rent* — Where lessors sue lessees for rent, the latter are entitled 
as a counterclaim to plead that the lessors had no right to make the lease, and 
that the real owners thereof have brought suit against one of the lessees, and 
will recover damages for its use during such lease. McKesson v. Mendenhall, 
64—286. 

Connterelaim may arise oat of tort or contract* ~A defendant may set 
up as a counterclaim any claim arising out of the transaction set out in the com- 
plaint, in his favor and against the plaintiff, whether the plaintiff's action arises 
upon a tort or a contract, and without regard to the nature of his own claim. 
Bitting v. Thaxton, 72 — 541. 

Mntnal stipulations in a contract* — The stipulations contained in a con- 
tract in these words, viz : "A contracts with B to tumish from 500 to 
1,000 bushels of coal daily, a, 6| cents per bushel, to be measured at the pit ; 
B to furnish timber gratis whenever he may see fit, reserving groves and 
fruit trees, and advance to A all the money, weekly, necessary to pay off the 
wood-choppers ; coal to be paid for on delivery," are mutually dependent, and 
if, without fault on the part of B, ^nd without legal excuse, the other. A, 
fails to deliver the quantity of coal agreed to be delivered, B, being sued for 
the value of the coal, &c., furnished, may properly set up such failure by way 
of counterclaim. Burton v. Wilkes, 66 — 65d4. 

Bank notes* — The maker of a note due a bank has a right to tender in pay- 
ment of such note the bills issued by the bank, and he can not be deprived of 
such right either by the assignment of the bank or by act «f the legislature. 
Blount V. Windley, 68 — i; Mann v. Blount, 65 — 99; and such right extends to 
the payment of judgments in favor of the bank in its own bills. Bank v. Tiddy, 
67 — 169; Bank v. Hart, 67 — 264. 

Before j OS tices of tlie peace* — The defendant, in actions before a justice 
of the peace, can not set up a counterclaim sufl&cient to extinguish the plain- 
tiff 's claim, and recover besides a balance due him by the plamtiff up to two 
hundred dollars. Derr v. Stubbs, 83 — 539. 

A defendant in a justice's court can plead a counterclaim or set-off which 
is over two hundred dollars. McClenahan v. Cotten, 83 — 332. 



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I02 CLARK'S CODE OF CIVIL PROCEDURE. 



On appeal from a justice. — The court may allow a defendant to set up a 
counterclaim, after an appeal from a justice's judgment, in its discretion. 
Johnson v. Rowland, 80 — i; Thomas v. Simpson, 80 — 4. 

No amendment in the superior court will be allowed in a case on appeal from 
a justice which would permit a counterclaim to be pleaded, which is in amoupt 
beyond the justice's jurisdiction. Meneely v. Craven, 86 — 364. 

Before C. C. P.— Where an action was commenced before C. C. P. unliq- 
uidated damages arising on executory contract are not a set-off as a counter- 
claim. Terrell v. Walker, 66 — 224. 

(2). In an an action arising on contract, any other cause 
of action arising also on contract and existing at the com- 
mencement of the action. 

Mast be set op hj answer* — A counterclaim can not be taken advantage of 
unless set up by answer. Johnson v. Bell, 74 — 355. 

An answer setting up a counterclaim which fails to show that the same sub- 
sisted between the parties when the action begun, or that it arose out of or was 
connected with the subject of the plaintiff's action, is demurrable. Reynolds 
V. Smathers, 87 — 24. 

If the coonterclalm Is pcrtiuent* — If the answer present new matter, 
which is pertinent and bona fide relied on, the regular mode to test its legal 
sufficiency as a defence is by a demurrer. Hull v. Carter, 83 — 249. 

Action against a personal representative.— A defendant sued as a per- 
sonal representative can not use as a set-off or counterclaim, against a creditor 
of the estate, a claim against such creditor purchased subsequent to the death 
of the testator or intestate. McClenahan v. Cotten, 83 — 332. 

Purcliase of note of insohrent plaintilT after sait bronght.— Where the 

defendant purchased a note on the plaintiff during the week of the trial term of 
the action, he is not entitled to have it applied in satisfaction of the plaintiff 's 
claim. Such a case is not embraced by the second clause of this section, be- 
cause it was not '* existing at the commencement of the action;" nor by the first 
clause of said section, as it is not ** connected with the subject of the action." 
Ne'ther has the defendant any right to an equitable set-off upon the mere 
ground of the insolvency of th^ plaintiff. Riddick v. Moore, 65 — 382. 

Assigrnment of non-negotJable paper.— To the complaint in an action by 
the assignee of a non-negotiable instrument, the maker can plead as a counter- 
claim anything which would have been an equity or counterclaim against the 
original payee. Bank v. Bynum, 84 — 24. 

Merger of set-off* — The defence of set-off, as heretofore administered, has 
been merged by the Code in that of counterclaim. Neal v. Lea, 64 — 678. 

Counterclaim valid against a lien.— In an action upon contract, though 
»■• a lien upon property is involved, it is competent for the defendant to extin- 
guish the debt by proof of a counterclaim. Poston v. Rose, 87 — 279. 

Action by vendor to recover land. — Although a parol contract to convey 
land is void by our statute of frauds, yet, if the vendee, relying thereupon, pays 
the purchase money and makes improvements, he can not be ousted until the 
vendor repays the purchase money and makes compensation for the value of the 
improvements, and these facts constitute a valid equitable counterclaim in an 
action by the vendor to recover possession of the land. Daniel v. Crumpler^ 
75—184. 

Judgment as a set*off. — The clause of the Code which forbids an action 
upon the judgment of any court, other than that of a justice of the peace, with- 
out leave, does not forbid the use of such judgments as set-offs. McClenahan 
V. Cotten, 83 — 332. 

Where A is sued by the executrix of B, on a note given for the purchase of 



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CLARK'S CODE OF CIVIL PROCEDURE. IO3 

land sold by the executrix, and on the tiial A offers as a set-o£F a judgment paid 
by him as B's surety, this, in administrations granted prior to ist of July, 1 869, 
is not a counterclaim. McLean v. Leach, 68-— 95. 

Porchase by creditor at an adiuinistrator's sale.— A creditor of one 
deceased, by note (there being no other debt of equal or higher dignity) became 
purchaser at a sale by the administratrix, and gave bond on that account (in an 
amount less than that of his claim), and this bond constituted the whole assets 
of the estate ; after the bond became due, the administratrix, who, with her 
sureties, was then insolvent, assigned it by indorsement for value, to one who 
was, to a small amount, creditor of the estate by account. Held^ that the cred- 
itor by note was entitled to bring in his debt as a counterclaim against an action 
upon his bond, whether by the administratrix or her assignee. Ransom v. 
McClees. 64 — 17. 

Purchaser at a mort^rage Sble* — While one who acquires the estate of 
the Brst purchaser, under a mortgage sale, is affected with notice of any defect 
in the title and can not clainr. an allowance for betterments as stuh^ he can set 
up an equitable counterclaim to the demand of the real owner for rents and 
profits, Scott v. Battle, 85—184. 

Purchase of a claim after an assiprnment to pay debts. — Where a firm 
made a deed of trust for benefit of creditors, to an action brought by the trustee 
against a debtor, such debtor can not plead as a counterclaim a debt against the 
firm which was assigned to him by one of its creditors after the registration of 
the deed. Brown v. Brittain, 84 — 552. 

Suit by a flrin* — Where a firm brings a defendant into a court to answer a 
claim for a debt which he owes them, he may not only require them, but either 
one of them to answer for a debt due him, whether it is connected specially with 
their claim jigainst him, or is an independent claim. Sloan v. McDowell, 
71—356. 

See^ also, cases under preceding sub-section and under § 243, sub-section 2, 
ante. 

Hecn 245. Si'veral defences. C* C. r., »* 102. 

The defendant may set forth by answer as many defences 
and counterclaims as he may have, whether they be such 
as have been theretofore denominated legal, equitable or 
both. They must each be separately stated and numbered, 
and refer to the cause of action which they are intended to 
answer, in such manner that they may be intelligibly dis- 
tinguished. 

Inconsistent defences* — Inconsistent defences in an answer are admissible 
if properly and distinctly set out. Ten Broeck v. Orchard, 79 — 518. 

ScTCral defences* — Where there are several defences to the same cause of 
action, they may all be pleaded, but each is as separate and independent of the 
other as if contained m different records. Sumner v. Chipman, 65 — 623; 
Kcathley v. Branch, 88 — 379. 

Both le^al and eqnitable defences.— A defendant may set up any defence 
which would have been available under the old mode of procedure, either in a 
court of law or court of equity. Clark v. Clark, 65 — 655. 

The defendant can set up as many defences as he may have, either legal or 
equitable, or both. Melvin v. Stephens, 82 — 283. 

False representations* — False representations, if acted upon, are an equita- 
ble defence. Walsh v. Hall, 66—233. 



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I04 CLARK'S CODE OF CIVIL PROCEDURE. 

Deficiency In qnantitjr of land,— 5<fw^/.f, that to an action for the purchase 
money of land, the defendant can plead a deficiency in the quaniiiy contracted 
for and ask an abatement pro rata to be credited on the note. Hutchinson v. 
Smith, 68 — 351. 

Answer will be rejected, when.— An answer which fails to state sepa- 
rately the distinct grounds of defence will be rejected, if excepted to in apt 
time. Keathley v. Branch, 88—379. 

Sec. 246, Demurrer and answer. ۥ C. P., 8. 103, 

The defendant may demur to one or more of several 
causes of action stated in the complaint, and answer to the 
residue. 

Can not answer and demnr. — A defendant can not answer and demur to 
the same cause of action at the me time. Von Glahn v. DeRossett, 76 — 292. 
Sfe % 184, an/f. 

Bemnrrer must be to an entire cause of action,— The demurrer, how- 
ever, must be to an entire cause of action or defence, and not to the separate 
allegations of such cause of action or defence. Sumner v. Young, 65 — 579. 

Ste, also, cases cited under § 238, an/g. 

Where ttiere are scYeral defendants,- Where stockholders of a bank are 

sued upon their joint liability a part can not demur and the rest answer. Their 
liability is joint and inseparable, and their interest in the questions involved 
are identical; and one can not be allowed to demur and another answer, any 
more than a single defendant could be allowed to demur and answer at the same 
time. Von Glahn v. DeRossett, 76 — 292. 

Sec, 247* Shatn and irrelevant defences* C C, P., s, 104, 

Sham and irrelevant answers and defences may be 
stricken out on motion, and upon such terms as the court 
may in its discretion impose. 
Should not be held fHTolons unless pnlpablj so. — The court will n< i 

readily decide an answer to be frivolous, which was intended to rai.se a serious 
question. Erwin v. Lowery, 64 — 231. 

An answer should not be stricken orit as frivolous where the matter objected 
to, as presented or in any other form, might constitute a defence. Boone v. 
Hardie, 83 — 470. 

An answer should not be held frivolous unless palpably so. Hull v. Carter, 
83 — 249 ; Womble v. Fraps, 77 — 198. SembUy that a refusal to hold an answer 
frivolous is not appealable. Hull v. Carter, 83 — 249. 

Not friTOlons, — A denial of certain of the allegations of the complaint, made 
in the form prescribed, 1. r. of any knowledge or information thereof, sufficient 
to form a belief, being allowed by the Code of Civil Procedure, raises when 
interposed a sufficient issue ; and such answer can not be stricken out as a 
sham defence. Bank v. Charlotte, 75 — 45. 

An answer to a complaint on a covenant for the payment of money, executed 
by the defendants, ana alleged to have become the property of the plaintiff by 
successive assignments, which alleges that there was a condition underwritten 
said covenant, to make it void if the land for which the covenant was given, 
was subject to incumbrances, and that at the time of the execution of the 
same, said land was subject to the lien of an execution against the cove- 
nantee, and further that the assignment of the covenant from the covenantee 
was procured by duress and fraud, and while the covenantee was mentally inca- 
pacitated to contract, and that the plaintiff took his assignment with full knowU 



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CLARK'S CODE OF CIVIL PROCEDURE. IDS 

edge of these facts, and that the plaintiff had caused a previous action on the 
same in the name of the covenantee, to be brought, which had been dismissed, 
and had filed a bill to compel the covenantee to allow the use of his name for 
that purpose, which had also been dismissed, and that afterwards the defendant 
had, after a full account with the covenantee, procured his release of the cause 
of action ; keld^ that such defences are not frivolous, but are worthy of serious 
consideration. Swepson v. Harvey, 66—436. 

Distinction between a sham defence^ and an irrelevant or frivolons 
0ne» — A sham answer is false in fact ; an irrelevant or frivolous one has no sub- 
stantial relation to the controversy and presents no defence to the action, though 
its contents be true. Howell v. Ferguson, 87 — 113. 

Sliani and frivolons answers. — A frivolous answer is one which is mani- 
festly impertinent, alleging matters which do not affect the plaintiff's right to 
recover. Dail v. Harper, 83 — 4 ; Brogden v. Henry, 83 — 274. 

An answer averring that '^no allegation of the complaint is true," will be 
stricken out on motion as frivolous. Flack v. Dawson, 69 — 42 ; Holmes v. 
Godwin, 69 — 467. 

An answer denying ** the complaint and each and every allegation therein con- 
tained," is sham and irrelevant, and should be stricken out on motion. Schehan 
V. M alone, 71 — 440. 

In an action against a tax collector for failure to collect and pay over the county 
taxes, an answer setting up as a sole defence a counter claim ba^edon an equal or 
greater amount of county debts paid off and taken up by him should be stricken 
out as a sham defence, since the tax list is in the nature of an execution in the 
hands of the tax collector on which he is bound to make the money. Com'rs 
of Yancey Co. v. Piercy, 72 — 181. 

Frivolons demnrrers* — In an action upon a note made in 1865, a demurrer 
which alleges, 

*'i. That the prayer for judgment does not set out any amount as claimed ; 
and 

2. That it would seem that the plaintiff desired to claim the value of gold at 
the time the note was given and not when it fell due," is frivolous, and should 
be stricken out as sham and irrelevant. Dunn v. Barnes, 73 — 273. 

A demurrer whicli raises no serious question of law is frivolous. Johnston v. 
Pate, 83—110. 

A demurrer to a complaint in an action brought by an executor that it does 
not allege that the probate of will and qualification were before suit brought, 
when the allegation is "before complaint filed," is frivolous. Hurst v. Adding- 
ton, 84—143. 

Where an irrelevant issne is made by the answer.— Where an irrele- 
vant issue raised by the answer is the only one submitted to the jury, and they 
Tfind a verdict for the defendant, the court should render a judgment for the 
plaintiff non obstante veredicto. Rowland v. Windley, 82 — 131. 

Motion to strike out most be made In apt time. — A motion to strike out 

improper matter from the complaint will not ordinarily be heard after answer 
or demurrer filed or leave granted for additional time to plead. Best v. Clyde. 
86—4. 

If demurrer is held frivolous.— When a demurrer is stricken out as frivo- 
lous, the plaintiff is entitled to judgment. Cowan v. Baird, 77 — 201. 
See, also § g 238, ante, and 269, 388, post, and cases cited under them. 



14 

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I06 CLARK'S CODE OF CIVIL PROCEDURE. 

CHAPTER FOUR. 
THE REPLY. 



Section. 

248. Reply; demurrer to answer. 

249. Motion for judgment on 

answer. 



Skction. 

250. Demurrer to reply. 



Sec* 248* Reply ; demurrer to answer* C. €• P., «. lOS* 

When the answer contains new matter constituting a 
counterclaim, the plaintiff may reply to such new matter, 
denying generally or specifically each allegation contro- 
verted by him or any knowledge or information thereof 
suflScient to form a belief; and he may allege, in ordinary 
and concise language, without repetition, any new matter 
not inconsistent with the complaint, constituting a defence 
to such new matter in the answer ; and the plaintiff may in 
all cases demur to an answer containing new matter, where, 
upon its face, it does not constitute a counterclaim or de- 
fence ; and the plaintiff may demur to one or more of such 
defences or counterclaims, and reply to the residue of the 
counterclaims. And in other cases, when an answer con- 
tains new matter constituting a defence by way of avoid- 
ance, the court may, in its discretion, on the defendant's 
motion, require a reply to such new matter; and in that 
case the reply shall be subject to the same rules as a rep\^ 
to a counterclaim. 

What the reply may contain. — A reply may contain new matter not re- 
ferred to in the complaint nor counterclaim, if not inconsistent with the com- 
plaint. Boyett V. Vaughan, 79 — 528. Overruled by Bovett v. Vaughan, 
85—363. 

Where no eonnterelaim is set op in the answer. — Where the answer sets 

up no counterclaim but denies the title of the plaintiff to one half of the Innd 
in suit, and alleges an assignment of his estate to one of the defendants, no re- 
ply is necessary, unless the court, on the defendant's motion, shall so order. 
Jones V. Cohen, 82 — 75. 

It is only when a counterclaim is relied on that the plaintiff's failure to reply 
may aflford ground for a judgment for want of a replication. Bamhart v. Smith, 
86—473. 

Bemnrrer to answer. — When an answer was sworn to before ''A B, clerk of 
the superior court," and the plaintiff replied that A B was "not a clerk of the 
superior qpurt," and the defendant demurred, the demurrer was sustained, be- 



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CLARK'S CODE OF CIVIL PROCEDURE. IO7 

cause the title to an office can not be determined in this collateral way. Cul- 
ver V. Eggcrs, 63 — 630. 

In case of demurrer to the answer, the question is, whether the facts thus 
admitted are sufficient to determine the rights of the parties. Blackwell v. 
Willard. 65—555. 

A demurrer to the answer of the defendant, on the ground that it did not 
not state what disposition, if any, had been made of the real estate of the in- 
testate, is insufficient, where it is not alleged in the complaint, and did not ap- 
pear that there was any real property belonging to the estate. Lee v. Beaman, 
73—410. 

A demurrer to an answer " for that it does not state that the entire personal 
property of the intestate has been exhausted," must be overruled, where it is 
alleged in the answer that '* the Confederate money thus received was the only 
assets remaining in the hands of the defendant, and that the same is worth- 
less." Ibid. 

A demurrer upon the ground '* that the answer does not stale by whom, nor 
to whom, nor in what amount refunding bonds were executed," must be over- 
ruled, when the answer .states *' that refunding bonds were taken from the next 
of kin, according to law, with solvent sureties, and filed in the clerk's office, 
and that these bonds had become insolvent by the results of the war." Ibid, 

A demurrer, ** because the answer does not stale at what time the defendant 
received Confederate money for the property of his intestate," must be over- 
ruled, when the answer does state the date and terms of the sale, and that the 
money was paid when due. Ibid, 

If demurrer to answer is sustained, — Ordinarily, if a demurrer to the 
answer is sustained, the judgment of the court will be final; but where the de- 
fect is the omission of an averment which can be remedied by amendment, 
leave to amend will be granted. Foy v. Haughton, 83 — 467. 

Sec. 24:9. MoHon for judgment on answer. C. C. P., «. 106. 

If the answer contaiD a statement of new matter consti- 
tuting a counterclaim, and the plaintiflF fail to reply or de- 
mur thereto, the defendant may move for such judgment 
as he is entitled to upon such statement; and if the case re- 
quire it an order for an inquiry of damages, by a jury, may 
be made. 

It is only when a counterclaim is relied on that the plaintiff 's failure to reply 
may a£Ford ground for a judgment for want of a replication, but not when the 
matter constitutes a defence to the action merely. Bamhart v. Smith, 86 — 473. 

Sec. 250. Demurrer to reply. C. C. JP.^ s. 107* 

If a reply of the plaintiff to any defence set up by the an- 
swer of the defendant be insufficient, the defendant may 
demur thereto, and shall state the grounds thereof. 



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CLARK'S CODE OF CIVIL PROCEDURE. 



CHAPTER FIVE. 

DUTIES AND POWERS OF THE CLERK Hf RE- 
LATION TO TH E PLEADINGS AND COLLAT- 
ERAL MATTER. 



Section. 

251. Jurisdiction of clerk on 

pleadings, &e. 

252. Any paj^y may appeal. 

253. Appeals, when taken, and 

by whom. 



Section. 

254. Duty of clerk on appeal 

prayed. 

255. Duty of judge on appeal 

256. Judgment on matter of law 

may be appealed from. 



Sec. 251. 
8. 198. 



Jurisdiction of clerk on pleadings, &c. C. C. P., 



The clerk of the superior court shall have jurisdiction to 
hear and decide all questions of practice and procedure in 
this court, and all other matters whereof jurisdiction is 
given to the superior court, unless the judge of said court, 
or the court at a regular term thereof, be expressly re- 
ferred to. 

Sooimoiii returnable to the term* — The act of March, 1869, *' suspend- 
ing the Code of Procedure in certain cases," is not unconstitutional in requiring 
summons to be returnable at term time. McAdoo v. Benbow, 63 — 461. 

As to return of summons before the adoption of the above act, in civil ac- 
tions, see Johnson v. Judd, 63 — 498. 

Special proceedings* — The summons in special proceedings is returnable 
before the clerk. Tate v. Powe, 64 — 644. 

For distinction between civil actions and special proceedings, see § § 126, 
127, 130, ante^ and cases there cited; also see ^§ 278 to 289, /^j/. 

Executions* — Application for an execution to issue on a judgment of more 
than three years standing should be made to the clerk, and not to the judge of 
the superior court. McKeethan v. McNeill, 74 — 663. 

The clerk has jurisdiction of a motion to set aside an execution. McAden v. 
Banister, 63—478. 

Dissolution of attacliment* — The clerk has power to vacate an attachment, 
notwithstanding the act of i870-'7i, which makes the process returnable in 
term time. Palmer v. Bosher, 71 — 291. 

Leare to sue in fortna pauperis. — The clerk may make an order for a 
party to sue as a pauper either in the superior or probate court, and as well for 
a guardian as one suing in his own right. Brendle v. Herron, 68 — 496. 

Consult, also, § § 210 and 237, ante^ and cases there cited. 

Legal custodian of court records* — The superior court clerk is the legal 
custodian of the records of the old county court, and no one has any right to 
take them from his possession or make any change or alteration in them. 
Com'rs V. Blackburn, 68 — 406. 



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Bnly to notify sheriff to stajrexecBtion pending an appeal.— It is the 

duty of the clerk to notify the sheriff whenever a bond to stay execution pend- 
ing an appeal is Bled in his office, in order that any execution which may have 
been issued may be suspended and a proper return made upon it. Bryan v. 
Hubbs, 69 — 423. 

Superyisorjr power of the jndgre* — The judge has power to supervise and 
control the action of the clerk m passing upon the sufficiency of bonds taken in 
cases pending in the superior court. Marsh v. Cohen, 68 — 283. 

Sec, 252* Any party may appeal. C. C. P., ». 109, 

Any party may appeal from any decision of the clerk of 
the suf>erior court, on an issue of law or legal inference, to 
the judge without undertaking. 

Stf cases cited under § 255, posi. 

Sec. 253. Appeals, when taken, and by whom. C. C. P., «. 
492. 

An appeal must be taken within ten days after the entry 
of the order or judgment of the court; but an appeal can 
only be taken by a party aggrieved, who appeared and 
moved for or opposed the order or judgment appealed from, 
or, who being entitled to be heard thereon, bad no notice 
or opportunity to be heard, which fact may be shown by 
affidavit or other proof. 

For construction of provisions as to appeals from the superior court, see cases 
cited under § § 548, 549 and 550, post. 

Sec. 254. Ihity ofderk an appeal prayed. C. C. P., s. 110. 

On such appeal, the clerk, within three days thereafter, 
shall prepare a statement of the case, of his decision and of 
the appeal, and shall sign the same. He shall, within the 
time aforesaid, exhibit such statement to the parties or their 
attorneys on request; if such statement is satisfactory, the 
parties or their attorneys shall sign the same. If either 
party object to the statement as partial or erroneous, he 
may put his objections in writing, and the clerk shall at- 
tach such writing to his statement, and within two days 
thereafter he shall send such statement, together with the 
objections, and copies of all necessary papers, by mail or 
otherwise, to the judge residing in the district, or, in his 
absence, to the judge holding the courts of the district, for 
his decision. 



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IIO - CLARK'S CODE OF CIVIL PROCEDURE. 

Distinction between issues of fact and questions of fact.— -An issue of 
fact made before a probate judge must be transferred to the superior court 
for trial before a jury ; but there are questions, of fact as motions to vacate an 
order in which his findings of fact may be reviewed by the judge. Lovinier v. 
Pearce, 70 — 167. 

Tacatlon of Jndgrnient of former conul j court,— A motion to vacate a 
judgment rendered in the former county courts in a matter touching the admm- 
istration of an estate, should be made before the clerk as judge of probate. 
Westcolt V. Hewlett, 67 — 191. 

Demurrer filed. — Where in a special proceeding to make real estate assets, 
before a probate judge, a demurrer is filed to the complaint, the issue of law 
raised thereby should be certified to the judge at chambers. Jones v. Hemphill^ 
77—42. 

Issues of law and fact. — If issues, both of law and fact, are raised before 
the clerk by The pleadings in a special proceeding, he should transfer the case to 
the civil issue docket for trial of the issues, both of law and fact, at the ensuing 
term of said court. Jones v. Hemphill, 77 — 42 ; McAden v. Banister, 63 — ^478. 

Sent to the judge of the district. — Such issues can only be sent to the 
judge of the district in which they are pending ; but a judge who exchanges dis- 
tricts with another for a whole riding or a series of courts, becomes the judge of * 
the district for all purposes during the time he is engaged in holding such courts. 
Bear v. Cohen, 65 — 511. 

The judge of one district can not decide issues from another. Myers v. Ham- 
ilton, 75 — 567 ; Morris v. Whitehead, 65 — 637. 

This section does not appljr to appeals from the clerk as judgre of pro- 
bate. — This section of the Code (C. C. P. § no) has never been applicable to 
an appeal from a probate judge, but only to appeals from the clerk to the judge 
in matters of pleading and practice in civil actions, when they were returnable 
before him. Lovinier v. Pearce, 70—167. 

[Note. — This ruHng is questionable.] 

Sec. 255. Ihity of judge an appeal. C. C. P.,«. 113. 

It shall be the duty of the judge, on receiving a state- 
ment of appeal from the clerk, or the copy of the record of 
an issue of law, to decide the questions presented within ten 
days. But if he shall have been informed in writing, by 
the attorney of either paHy, that he desires to be heard on 
the questions, the judge shall fix a time and place for such 
hearing, and give the attorneys of both parties reasonable 
notice thereof. He shall transmit his decision in writing, 
endorsed on or attached to the record, to the clerk of the 
court, who shall immediately acknowledge the receipt 
thereof, and, within three days aff^r such receipt, notify the 
attorneys of the parties of the decision, and on request and 
the payment of his legal fees, give them a copy thereof; and 
the parties receiving such notice o^ay proceed thereafter ac- 
cording to law. 



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CLARK'S CODE OF CIVIL PROCEDURE. Ill 

Jodge majT decide in racation or in term.—Wbere an appellant elects to 
carry a case from the probate court to the judge in vacation, it is still within the 
discretion of the latter to hear it in term time, and vice versa, Rowland v. 
Thompson, 64 — 714. 

Pow**f8 of the Judge* Upon such appeal the judge may review the find- 
ings of the clerk upon matters of fact. McAden v. Banister, 63 — ^478. 

In an appeal from the ruling of the clerk on a demurrer to an application be- 
fore him to make real estate assets, the judge has no power to grant license to 
sell. He should transmit his decision to the clerk with leave to the defendant to 
answer if he choose to do so. The appeal gives the court jurisdiction for no pur- 
pose, beyond the decision of the demurrer. Jones v. Hemphill, 77 — 42. 

Appeal from tlie Judge to tlie supreme court*— In case of such an appeal, 
if there be a further appeal from the judge to the supreme court, the latter trib- 
unal can review no point before the probate court that was not passed upon by 
the judge of the superior court. Rowland v. Thompson, 64 — 714. 

Judgre's docliet* — Quere. — Whether, the act suspending the Code in certain 
cases may make it unnecessary for the judge to keep a docket, and will make the 
entry of judgments m civil actions in vacation irregular. Graham v. Charlotte & 
S. C. R. R. Co , 64—631. 

Amendment in the superior court after appeal* — Where a complaint 
which states matters properly triable in the probate court is amended in the supe- 
rior court on appeal by engrafting new matter cop^nizable only by the superior 
court in term, a demurrer averring defect of jurisdiction over such matter will be 
sustained. If however a case wrongfully begun before the clerk gets into the 
superior court by appeal or otherwise, and the lattef has jurisdiction of the whole 
cause, it will proceed to its determination and make all amendments of process 
needful to give eflfectual jurisdiction. Capps v. Capps, 85 — 408. 

Sec. 256, fTudgtnent an a tnatter of law may be appealed 
from. C. C* P*, 8. 115. 

Any party within ten days after notice of such judgment, 
may appeal to the supreme court of the state from such 
judgment, upon any matter of law or legal inference therein, 
under the regulations provided for appeals in other cases. 
But execution shall not be suspended until the undertak- 
ings required by this Code shall have been given. If issues, 
both of law and of fact, or issues of fact only, are raised be- 
fore the clerk of the superior court, he shall transfer the 
case to the civil issue docket for trial of the issues at the 
ensuing term of the superior court. 

Appeal to the supreme court* — In case of such an appeal, if there be a fur- 
ther appeal from the judge to the supreme court, the latter tribunal can review 
no point before the probate court that was not passed upon by the judge of the 
superior court. Rowland v. Thompson, 64 — 714. 

Issues of law and fact* — If issues of law and fact are both raised, the clerk 
should transfer the case to the civil issue docket for trial at the next terra of the 
court. Jones v. Hemphill, 77 — 42 ; McAden v. Banister, 63 — 478. 

For requirements as to appeals under this section, see § 548, 549 and 550 post^ 
and cases there cited. , 

For decisions as to jurisdiction and powers of clerks, see more fully § 278 to 
g 289, post^ and cases there cited. 



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CLARK S CODE OF CIVIL PROCEDURE. 



CHAPTER SIX. 



GENERAL RULES OF PLEADING. 



Section. 

257. Pleadings to be subscribed 

and verified. 

258. Pleadings, how verified. 

259. Items of account ; particu- 

lars to be furnished, when. 

260. Pleadings, how construed. 

261. Irrelevant or redundant ; 

indefinite or uncertain. 

262. Judgments, how to be plead- 

ed. 

263. Conditions precedent, how 

to be pleaded ; instrument 



Section. 

for payment of money 
only. 

264. Private statutes, how plead- 

ed. 

265. Libel and slander, how sta- 

ted in complaint. 

266. Answer in such ca.ses. 

267. What causes of action may 

be joined in the same com- 
plaint. 

268. Allegation not denied, when 

to be deemed true. 



Sec. 257 • Pleadings to he subscribed and verified, €• €• P., 
H. IIH. 

Every pleading in a court of record must be subscribed 

by the party or his attorney ; and when any pleading is 

verified, every subsequent pleading, except a demurrer, 

must be verified also. 

Complaint rerifled and answer not. — When the complaint is verified, and 
the answer is not, the plaintiff is entitled, on motion, to judgment, as for want 
of an answer. Alspaugh v. W instead, 79 — 526. 

Amendment of pleading alter verlflcation. — A pleading which is amended 
in any material part after verification, is regarded as not verified ; therefore, the 
subsequent pleadings need not be verified. Rankin v. Allison, 64 — 673. 

Action agraiust landlord and tenant. — When, in an action against both the 
landlord and tenant, to recover possession, the tenant fails to swear to his an- 
swer, the complaint being verified, the plaintiff miy take judgment against 
him ; but can not have execution against him, until the further order of the court, 
which will not be made until after the trial of the issues between him and the 
landlord defendant. The damages against the tenant will be a matter of inquiry 
at the trial with the landlord, or separately, as the court may direct. Harkey v. 
Houston, 65 — 137. 

Snspenslon of C. C. P# — This section is not affected by the act suspending 
the Code. Haywood v. Biyan, 63 — 521. 

Complaint not verified. — That the complaint is not verified is not ground 
for a motion to dismiss the action. The effect is simply to dispense with the ne- 
cessity of verifying subsequent pleadings. Reynolds v. Smalhers, 87 — 24. 

Admissiond in pleadingrs. — The admissions of a party made in the plead- 
ings are competent evidence against him, even though the party subsequently, 
by leave of court, files pleadings amended in that respect. Adams v. Utley, 
87—356. 



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CLARK'S CODE OV CIVIL PROCEDURE. II3 

Sec. 258. rieadings, how verified. C. C. J^.,8. 117s ISOS-^O, 
c. lS9f 8. 7. 

The verification must be to tbeeflFect that the same is true 
to the knowledge of the person making it, except as to those 
matters stated on information and belief, and as to those 
matters, he believes it to be true, and must be by affidavit 
of the party, or, if there be several parties united in inter- 
est, and pleading together, by one at least of such parties 
acquainted with the facts, if such party be within the county 
where the attorney resides, and capable of making the affi- 
davit. The affidavit may also be made by the agent or at- 
torney, if the action or defence be founded upon a written 
instrument for the payment of money only, and such in- 
strument be in the possession of the agent or attorney, or 
if all the material allegations of the pleading be within the 
personal knowledge of the agent or attorney. When the 
pleading is verified by any other person than the party, he 
shall set forth in the affidavit his knowledge, or the grounds 
of his belief on the subject, and the reasons why it is not 
made by the party. When a corporation is a party, the 
verification may be made by any officer thereof; and when 
the state, or any officer thereof in its behalf, is a party, the 
verification may be made by any person acquainted with 
the facts. The verification may be omitted when an admis- 
sion of the truth of the allegation might subject the party 
to prosecution for felony. And no pleading can be used in 
a criminal prosecution against the party, as'proof of a fact 
admitted or alleged in such pleading. Any judge, or clerk 
of the superior court, notary public, or justice of the peace, 
shall be competent to take affidavits for the verification of 
pleadings, in any court or county in the state, and for gen- 
eral purposes. 

Yerlfleation by ao officer of a corporation* — A verification to a com- 
plaint by an officer of a corporation need not set forth " his knowledge or the 
grounds of his belief and the reason why it is not made by the party." The 
verification by its officer is the verification of the corporation itself. Bank v. 
Hutchison, 87 — 22. 

Yeriflcalion hj an attorney or agent,— A verification to a complaint by 
an attorney or agent of a non-resident to the efifect that the claim sued on is in 

15 



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114 CLARK*S CODE OF CIVIL PROCEDURE. 

writing and in his possession for collection, giving facts in his personal knowl- 
edge and frgm other sources of information, is sufficient. Johnson v. Maxwell, 
87—18. 

A verification may be made by an agent or attorney where the action or de- 
fence rests *' upon a written instrument for the payment of money only " and 
such instrument is in his hands, or the material allegations lie within his per- 
sonal knowledge, and in such case the affidavit itself must show the knowledge 
or grounds of his belief and the reasons why it is not made by the parly him- 
self. Cowles v. Hardin, 79 — 577. 

Does not apply to auxiliary remedies. — The requirements as to an 
'* agent*' under this section do not apply to affidavits to procure ancillary 
remedies. Bruff v. Stern, 81 — 183. 

WiiereTeriflcatioii is required by statnte,— Where a statute requires a 
complaint to be verified, a failure to do so is a fatal defect, for which the 
judgment will be arrested. Cowles v. Hardin, 79 — 577. 

Form of verification. — A verification that '' the facts set forth in the fore- 
going complaint are true," is sufficient. Alspaugh v. VVinsiead, 79—526. 

A verification ** to the best of the knowledge, information and belief of the 
affiant," is insufficient. Benedict v. Hall, 76—113 ; Cowles v. Hardin, 79 — 577. 

A verification discriminating between the facts averred upon knowledge and 
those resting upon information and belief is sufficient. Paige v. Price, 78 — 10. 

Teriflcation of amended or 8nl)8equent pleadingr by tlie same party. — 

Where the same party files a properly verified pleading, either by reply or 
amendment, it cures an insufficient verification of the first pleading. Benedict 
V. Hall, 76—113. 

Before notary pnbiic. — A verification before a notary public is insufficient. 
Benedict V. Hall, 76 — 113; Paige v. Price, 78 — 10. 

[Note. — This is now otherwise by the amendment since engrafted into above 
section.] 

Secn 21^9. Items of account; pai'ticulars to be furtiistied, 
wh^n. C. €• P., «. 118. 

It shall not be necessary for a party to set forth in a 
pleading the items of an account therein alleged; but he 
shall deliver to the adverse party, within ten days after a 
demand thereof in writing, a copy of the account, which, if 
the pleading is verified, must be verified by his own oath, 
or that of his^ agent or attorney, if within the personal 
knowledge of such agent or attorney, to the effect that he 
believes it to be true, or be precluded from giving evidence 
thereof.. The court or the judge thereof may order a further 
account when the one delivered is defective; and the court 
may, in all cases, order a bill of particulars, of the claim of 
either party to be furnished. 

See* 260. Pleadings, how construed. C. C\ i*., 8. 119. 

In the construction of a pleading for the purpose of deter- 
mining its effect, its allegations shall be liberally construed, 
with a view of substantial justice between the parties. 



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Modification of former system of pleadingr.— The rules of pleading at 
common law have not been abrogated by the C. C. P., the essential principles 
still remain. Parseley v. Nicholson, 65 — 210 ; Oates v. Gray, 66 — 442. 

Contra* — The subtle science of pleading heretofore in use is not merely re- 
laxed, but is abolished, and few, if any, of the ancient rules are now applicable. 
Moore v. Edmiston,' 70 — 510. 

Ambignitj or oneertainty* — In case of ambiguity and uncertainty in plead- 
ing, the words arc to be taken most unfavorably to the party using them. 
Wright V. McCormick, 67 — 27. 

Liberal eonstrnction. — The objection that the complaint sets out a cause 
of action which, under the old jjtactice, would be in trover, while the proof 
shows a claim in assumpsit, cannot defeat a recovery ; since the distinction be- 
tween common law actions has been abolished, no objection founded on such 
distinction can be allowed. Oates v. Kendall, 67 — 241. 

1 he provision, in our present constitution, by which the distinction between 
actions at law and suits in equity is abolished, and the subsequent legislation, 
affects only the mode of procedure, and leaves the principles of law and equity 
intact. The courts, as now constituted, give reliet, not merely to the extent, 
and in cases where it was heretofore given by the courts of law, but also, to the 
extent and in the cases, where it washeretofore given by the courts of equity : 
in other words, the principles of both systems are preserved, the only change 
being that these principles are applied and acted on in one court and under one 
and the same mode of procedure. Lee v. Pearce, 68—76. 

** The distinction between actions at law and suits in equity is abolished, and 
there shall be but one form of action," in the constitution and all legislation 
based on it, must be taken to affect only the form of procedure and to leaye 
intact the principles, which, from the nature of the proceeding, must, of neces- 
sity, be applied, whether in a court of law or a court of equity. Haughton v. 
Newberry, 69 — 456. 

Restrictions on liberal construction. — When the defendant, by demur- 
rer, points out the defects of the complaint, and the plaintiff then fails or re- 
fuses to amend, as he would be allowed to do, he is not taken by surprise, and 
has no right to claim a benefit in the Supreme Court, which he has refused in 
the court below. Nor would substantial justice be done to the parties by a 
construction so liberal as to hold that the demand here /the averment being 
simply *' the same has been demanded before the bringing of this action,") was 
both made upon the proper officer, and after a con-.pliance with all the pre- 
requisites to a valid demand. Jones v. Com'rs, 73 — 182. 

Htc. 201, Irreleratif or vvdundant ; indefinite or uncer" 
tain. C. C.r..8. 120. 

If irrelevant or redundant matter be inserted in a plead- 
ing, it may be stricken out, on motion of any person ag- 
grieved thereby, but this motion must be made before an- 
swer or demurrer, or before an extension of time to plead is 
granted. And when the allegations of a pleading are so 
indefinite or uncertain that the precise nature of the charge 
or defence is not apparent, the court may require the plead- 
ing to be made definite and certain by amendment. 

Judge can not act except npon motion. — The judge can not act under 
this section, except upon a motion made. Ten Broeck v. Orchard, 79 — 518. 



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Il6 CLARK'S CODE OF CIVIL PROCEDURE. 

Motion must be made in apt time. — A motion to strike out improper mat- 
ter in a complaint will not ordinarily be heard after answer or demurrer, or 
even after an order for time to plead. No appeal lies from a refusal to grant 
such motion if made after that time. Best v. Clyde, 86 — 4 

Either nnder tllis section or 247 ante, — An irrelevant or frivolous plead- 
ing can be stricken out under either § 247 antg^ or under this. Comm'rs v. 
Piercy, 72 — 181. 

OITensiye lang'nagre in pleadings,— Pleadings that use offensive language 
should be struck out and reformed. Mitchell v. Brown, 88 — 156. 

See cases cited under g§ 247 and 260 as specially applicable here. See also 
%'>,%% post. 

Sec, 262. Judgments, how to be pleaded. C. C JP., 8. 121. 

In pleading a judgment or other determination of a court 
or of an officer of special jurisdiction, it shall not be neces- 
sary to state the facts conferring jurisdiction, but such judg- 
ment or determination tnay be stated to have been duly 
given or mad^. If such allegation be controverted, the party 
pleading shall be bound to establish, on the trial, the facts 
conferring jurisdiction. 

Hec. 203. Conditions precedent, how to be pleaded ; instm- 
tnent for payment of money only. C. C. P., s. 122. 

In pleading the performance of conditions precedent in a 
contract, it shall not be necessary to state the facts showing 
such performance; but it may be stated generally that the 
party duly performed all the conditions on his part; and if 
such allegation be controverted, the party pleading shall be 
bound to establish, on the trial, the facts showing such per- 
formance. . In an action or defence founded upon an instru- 
ment for the payment of moi^y only, it shall be sufficient 
for the party to give a copy of the instrument, and to state 
that there is due to him thereon, from the adverse party, a 
specified sum which he claims. 

Sec. 264. rrivate statutes, how pleaded. C. C. JP., s. 123. 

In pleading a private statute or right derived therefrom, 
it shall be sufficient to refer to such statute by its title and 
the day of its ratification, and the court shall thereupon 
take judicial notice thereof. 

The court is required by this section of the Code to take judicial notice of 
any private statute, which is referred to by its title ; so that a complaint, which 
refers in this manner to a statute by which the plaintiff claimed to have been 
incorporated, is to be regarded as setting forth such statute in fall, as a part of 
the cause of action. Trustees v. Satchwcll, 71 — in. 



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CLARK'S CODE OF CIVIL PROCEDURE. II7 

Sec, 20S* Libel and slander^ how stated in comj^faint* C. 
C. P., ft. 124. 

In an action for libel or slander, it shall not be necessary 
to state in the complaint any extrinsic facts, for the purpose 
of showing the application to the plaintiff of the defama- 
tory matter out of which the cause of action arose; but it 
shall be sufficient to state generally that the same was pub- 
lished or spoken concerning the plaintiflf; and if such alle- 
gation be controverted, the plaintiff shall be bound to estab- 
lish, on trial, that it was so published or spoken. 

In case of a demurrer to a complaint in an action for libel, upon the ground 
that it was *' too vague and indefinite to warrant a judgment," the court say, 
Rodman, J., delivering the opinion : "This section was intended to do away 
with the refined and subtle distinctions, which had found a place in the com- 
mon law pleadings in actions for libel." When a complaint alleges that ** the 
defendant published, concerning the plaintiff, in a newspaper," &c., a certain 
article containing the false and defamatory matter following,," &c., it suffi- 
ciently avers that the defamatory matter was concerning the plaintiff. Carson 
V. Mills, 6g — 122. 

Sec. 260. Answer in sttcJi canes, C. C. P., s. 125. 

In the actions mentioned in the preceding section, the de- 
fendant may, in his answer, allege both the truth of the 
matter charged as defamatory, and any mitigating circum- 
stances to reduce the amount of damages ; and whether he 
prove the justification or not, he may give in evidence the 
mitigating circumstances. 

An answer alleging that the defendant *'did not speak the words charged 
with malice, but that he was informed and believed them to be true in sub- 
stance and effect," stating the grounds of his belief, and alleging that he *' did 
not admit that the words charged were spoken w'thin six months before suit 
brought," amounts, under the Code, to pleading justification and the statute of 
limitations. Moore v. Edniiston, 70—510. 

Sec. 207. What causes of action may be joined in tlie same 
complaint. C. C. i*., «. 120. 

The plaintiff may unite in the same complaint several 
causes of action, whether they be such as have been hereto- 
fore denominated legal, or equitable, or both, where they 
all arise out of: 

Creditors affected by frand of coiiimon debtor.— Creditors affected by 

the fraud of a common d'^btor in the conveyance of his property, can join in 
one action to subject the same to the payment of their debts. Mebane v. Lay- 
ton, 86 — 571. 

Joinder of prayers for divers relief. — A complaint can join prayers for 
divers reliefs, when, if the primary relief demanded is granted, the others follow 



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as a matter of course, as here — the setting aside a decree for fraud and the an- 
nulling of deeds given for land sold under it and the recovery of the land and 
retits, with injunction against waste. England v. Garner, 86-— 366. 

Action on official bonds« — A complaint can join causes of action against an 
officer upon two official bonds, given for separate terms of office, against him 
and the sureties common to the two bonds. Syme v. Bunting, 86 — 175. 

A complaint in which are joined two causes of action — one upon a clerk's 
bond and another upon an administrator's bond — is demurrable. Street v. 
Tuck, 84—605. 

Objection most be falcen by answer or demorrer. — The objection of a 

misjoinder of causes of action must be taken by answer or demurrer, and if not 
taken by either, can not be taken by motion upon trial. Bums v. Ashworth, 
72 — 496 ; McMillan v. Edwards, 75 — 81. 

Where causes of action are between same paHles and Joinder is con- 

yenieilt. — Where different causes of action are of the same character and be- 
tween the same parties litigant, and the joinder is convenient to them, the 
court will usually refuse to sustain an objection to the joinder. King v. Far- 
mer, 88—22. 

Misjoinder* — A cause of action to foreclose a mortgage on one tract of land 
can not be joined with a cause of action to obtain possession of another tract. 
Edgerion v. Powell, 72 — 64. 

A complaint can not join a cause of action of which the court has jurisdiction 
with one of which it has not jurisdiction. Finch v.Baskerville, 85 — 205. 

Nor a cause of action based on the contract of one defendant with a cause of 
action on the fraud of both in procuring said contract. N. C. Land Co. v. 
Beatty, 69 — 329. 

A cause of action founded on a tort cannot be united with one founded on a 
contract. Logan v. Wallis, 76 — 416; Doughty v. Railroad, 78 — 23. 

(1). The same transaction or .transaction connected with 
the same subject of action ; 

Can be Joined* — A demand for re-execution of a lost deed and for posses- 
sion of the land. McMillan v. Edwards, 75 — 81. 

For debt and to declare void conveyances alleged to have been made by the 
debtor in fraud of the complaining creditor. Bank v. Harris, 84 — 206. 

A note for less than two hundred dollars may be united with an open account 
to make up a sum sufficient to confer jurisdiction upon the superior court, and 
such complaint is not objectionable, either on account of the misjoinder or on 
account of each cause of action being for less than two hundred dollars. Sut- 
ton V. McMillan, 72 — 102. 

So, too, a cause of action for failure to account may be joined with one for 
combination to defraud in conveyance of his ward's lands, in an action against 
one who has been a guardian of the plaintiff. Adams v. Quinn, 74 — 359. 

To a complaint which charged the defendant with : 

t'l. Harboring and maintaining his wife ; 

2. The conversion of personal property to which the plaintiff was entitled 
jure niariti ; 

3. Inducing the wife, while harbored and maintained, to execute to the de- 
fendant a deed for land under which he had received ihe rents and profits ; and 

4. Converting to his own use certain articles ot personalty named in a mar- 
riage settlement between the plaintiff and his wife," 

The defendant demurred for misjoinder of causes of action, which was over- 
ruled below, and that ruling was sustained in the supreme court. Hamlin v. 
Tucker, 72 — 502. 

Joinder of partnership and indlvidaal liability* — A cause of action aris- 
ing on joint contract as a partner may be joined with a personal liability for the 
conversion of the plaintiff's goods, provided, the plaintiff waives the tort em- 
braced in such taking. Logan v. Wallis, 76 — 416. 



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The maker and endorser of a note ean not be gned Jointly with the 
iniArantor* — A plaintiff can not unite a cause of action against A and B as the 
maker and endorser of a note, with a cause of action against C, as the guaran- 
tor of a judgment rendered on such note. VVooten v. Staultsby, 69 — ^462. 

Joinder of several causes of action against dilferent defendant!;*— 

Where a general right is claimed arising out of a series of transactions tending 
to one end, the plaintiff may join several causes of action against defendants 
who have distinct and separate interests. Young v. Young, 81 — 91. 

Court may order action t4) be diYlded.— Where two causes of action are 
improperly joined the court may order the action to be divided. Street v. 
Tuck, 84 — 605; Finch v. Baskerville, 85 — 205. 

(2). Contract, express or implied ; or, 

(3). Injuries with or without force to person and property, 
or to either; or, 

(4). Injuries to character; or, 

(5). Claims to recover real property, with or without dam- 
ages for the withholding thereof; and the rents and profits 
of the same ; or, 

(6). Claims to recover personal property, with or without 
damages for the withholding thereof; or, 

A cause of action founded on a tort, can not be united with one founded on a 
contract. Doughty v. Atlantic & North Carolina Railroad Company, 78 — 22 ; 
Logan V. Wallis, 76—416. 

(7). Claims against a trustee, by virtue of a contract, or 
by operation of law. 

But the causes of action so united must all belong to one 
of these classes, and except in actions for the foreclosure of 
mortgages, must affect all the parties to the action, and not 
require different places of trial, and must be separately 
stated. In actions to foreclose mortgages, the court shall 
have power to adjudge and direct the payment by the mort- 
gagor, of any residue of the mortgage debt that may remain 
unsatisfied after a sale of the mortgaged premises, in cases 
in which the mortgagor shall be personally liable for the 
debt secured by such mortgage; and if the mortgage debt 
be secured by the covenant or obligation of any person other 
than the mortgagor, the plaintiff may make such person a 
party to the action, and the court may adjudge payment of 
the residue of such debt remaining unsatisfied after a sale 
of the mortgaged premises, against such other person, and 
may enforce such judgment as in other cases. 



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I20 CLARK'S CODE OF CIVIL PROCEDURE. 

Any naniber of causes of action maj be Joined.— Any number of causes 

of action may be embraced in one complaint, provided they all belong to any one 
of the classes named above. Sutton v. McMillan, 72 — 102 ; Land Co. v. Beatty, 
69 — 329 ; Logan v. Wallis, 76 — 416 ; Young v. .Young, 81 — gi. 

The causes of action must affect all tlie parties to tlie action.— The 

causes of action must afifect all the parties to the action, except in case of actions 
to foreclose mortgages. Land Co. v. Beatty, 69 — 329 ; Logan v. Wallis, 
76—416. 

Ste cases cited under the previous sub-sections of this section, also cases cited 
under sub-section 5 of g 230, ante. 

Sec. 268. Allegation not denied^ when to he deemed true. 

a c. r., 8. 127. 

Every material allegation of the complaint not contro- 
verted by the answer, and every material allegation of new 
matter in the answer, constituting a counterclaim, not con- 
troverted by the reply, shall for the purposes of action be 
taken as true. But the allegation of new matter in the an- 
swer not relating to a counterclaim, or of new matter in 
reply, is to be deemed controverted by the adverse party as 
upon a direct denial or avoidance, as the case may require 

Allegations of complaint not denied. — What is alleged in the complaint, 
and not denied in the answer, is to be taken as admitted. Jenkins v. Ore Dress- 
ing Co., 65 — 463. 

All facts averred in the complaint, and not controverted by the defendant, 
must be taken as true for the purposes of the action. Oates v. Gray, 66 — ^442. 

Every allegation of the complaint not denied by the answer is admitted, and 
is as effectual as if found by a jury. Bonham v. Craig, 80^224. 

(Kv^^ ,^^ Counterclaim not denied. — Allegations of new matter constituting a coun- 

L. "Xf*^""^^' lerclaim are to be taken as true unless denied. McKesson v. Mendenlmll, 64 — 

hf^ 286 ; Green v. N. C. R. R. Co., 77—95. 

Alleprations of answer, other than counterclaim, not denied. — Allega- 
tions of new matter in the answer, not constituting a counterclaim or of new mat- 
ter in reply, are to be deemed controverted by general denial or avoidance. 
Erwin v. Lowery, 64 — 321; Price v. Eccles, 73 — 162; Skinner v. Wood, 
76—109. 

Where in an action for the settlement of a partnership, the defendant ad- 
mits the partnership, but alleges that there has been a complete settlement, 
with only specified exceptions, and there is no reply, the settlement must be 
^ taken as denied. Price v. Eccles, 73 — 162. 

Denial of knowledge or information. — A denial of * any knowledge or 
information sufficient to form a belief," is a sufficient denial to raise an issue. 
Hank v. Charlotte, 75 — 45. 

In action of slander. — In an action for slander, an answer admitting that 
the words were spoken, denying that they were spoken maliciously, alleging 
that the defendant believed the charge made by him was true, and that the 
words were spoken more than six months before suit brought, amounts, under 
our liberal system of pleading, to the pleas of justification and the statute of 
limitations. Moore v. Edmiston, 70 — 510. 

Legal proposition not established bj admissions in pleadings.— A 

legal proposition can not be established by admissions in the pleadings. Kelly 
y. McCallum, 83 — 563. 



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121 



CHAPTER SEVEN. 



MISTAKES IN FLEADINOS AND AMElbMENTS. 



Section. 

269. Material variance. 

270. Immaterial variance. 

271. A failure of proof, iwhen. 

272. Amendments of course after 

allowance of demurrer. 

273. Amendments by order. 

274. Belief in case of mistake, 



Sbction. 

surprise or excusable neg- 
lect. 

275. When plaintiff ignorant of 

name of defendant. 

276. Errors or defects not sub- 

stantial, to be disregarded. 

277. Supplemental pleadings. 



aScc. 269. Material variance. C. C. P., s. 128. 

No variance between the allegation in a pleading and the 
proof shall be deemed material unless it has actually mis 
led the adverse party, to his prejudice, in maintaining his 
action upon the merits. Whenever it shall be alleged that 
a party has been so misled, that fact shall be proved to the 
satisfaction of the court, and in what respect he has been 
misled ; and thereupon the judge may order the pleading 
to be amended upon such terms as shall be just. 

A different cause of action* — No amendment of pleadings will be per- 
mitted where the proof establishes a cause of action wholly different from that 
alleged in the complaint. Carpenter v. Huffsteller, 87 — 273; Grant v. Bur- 
gwyn, 88 — 95. 

Tariance between snmuions and complaint. — A variance between sum- 
mons and complaint, in that the former is by the plaintiffs in their individual 
capacity, while the latter sets up causes of actions in behalf of said plaintiffs . 
** and all others creditors and note-holders of the Bank of North Carolina;" and 
that the summons is against the defendants in their individual capacity, while 
the complaint sets out causes of action against them as executors and stock- 
holders, &c., is immaterial. ** The only difference," say the court, ** between 
the practice under the Code and in the court of equity is that, by the Code, the 
summons precedes instead of following the complaint. In both courts its only 
office is to give notice of an action begun, the parties to it, and where the com- 
plaint will be filed." Wilson v. Moore, 72 — 558. 

Tariance between pleadin^^s and proof.— There must be allegata and 
probata ; and under ihe new system, as under the old, the court can take no 
notice of any proof, unless there be a corresponding allegation. The court has 
a very wide discretion in reconciling the allegations with the proof, but it has 
no more power than under the old system, to hear proofs without allegations. 
McKee v. Lineberger, 69 — 217. 

"Where 'the complaint alleges the delivery of a certain number of brick to the 
defendant, and the proof shows the delivery to, and acceptance by, him of a 
a larger number, the variance will not defeat a recovery. Brown v. Morris, 
83—251. 

A variance between allegation and proof is immaterial in a civil action, un- 
less the adverse party has been misled. Lilly v. Baker, 88 — 151. 

16 



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122 CLARK'S CODE OF CIVIL PROQEDURE. 

SembU, that this section cures variances between pllhding and proof, where 
the defendant in ejectment relies upon a different title from the one set up in 
lue answer. Keathley v. Branch, 88 — 379. 

Defect in n^me of a party* — Where there is a defect in the name of a de- 
fendant in the summons it is cured by the judgment, and if there is an appeal 
it is the duty of the upper court to amend. CTawson v. Wolfe, 77 — 100. 

Judge cau not reform pleadings except on motion. — A judge can not 
order reformation of pleadings ex mero motu. Ten Broeck v. Orchard, 79 — 518. 

Amendments liberally allowed.—Amendments to pleadings which further 
justice, speed the trial of causes, or prevent circuity of action and unnecessary 
expense should be liberally allowed on proper terms. Com'rs v. Blair, 76 — 136. 

Motion to amend before trial* — Sections 269 to 277 point out how amend- 
ments shall be made, the obvious purpose being that parties shall apply to the 
court, in apt time, prior to the trial, to amend the pleadings in all »he particu- 
lars objected to and that they may not be allowed, at the trial, to spring ob- 
jections to the form or effect of the charge or defence. Moore v. Edmiston, 
70—510. 

Amendment daring trial*— The judge, on the trial, may direct the findings 
according to the evidence, and amend the pleadings accordingly. Gibbs v. 
Fuller, 66—116. 

After answer* — When the answer showed that the defendant had not been 
misled by the defect of the complaint, a motion to dismiss for such defect, dis- 
covered after answer, will not be allowed. Garrett v. Trotter, 65 — 430. 

Amendment not necessary. — Where the complaint sets out a special con- 
^tract, which fails, the plaintiff can proceed with the case and recover his dam- 
ages, as on the common counts in assumpsit, without any amendment of the 
pleadings. Jones v. Mial, 82 — 252. 

Amendment allowed.— A plaintiff may sue for a horse and recover a cow, 
but in order to do this, when the variance appears, he must obtain leave to 
amend. Judgment can not be rendered on a state of facts not alleged in the 
complaint and inconsistent therewith. Shelton v. Davis, 69 — 324. 

In an action for slander, when the complaint alleges the slanderous words to 
have been uttered at a specific time and place, the plaintiff may prove the 
words to have been spoken at a different time and place ; but if the defendant 
shall have been misled by such allegation, and has not set up the statute of 
limitation in consequence, the court will allow him to amend and put in that 
defence. Pegram v. Stoltz, 67 — 144. 

In an action for claim and delivery, if the proof shows that the defendant 
had sold the property before action brought, the plaintiff should be allowed to 
amend the complaint, without costs, and to ask judgment for the value of the 
property. But he could not recover without such amendment. Haughion v. 
Newberry, 69 — 456 ; Webb v. Taylor, 80 — 305. 

Hec. 270. Immaterial variance. C C P*, s. 129. 

Where the variance is not material as provided in the 
preceding section, the judge may direct the fact to be found 
according to the evidence, or may order an immediate 
amendment without costs. 

See cases cited under preceding section. 
See* 27 !• A failure of proof, when. C. C P., s. 130. 

Where, however, the allegation of the cause of action or 
defence to which the proof is directed is unproved, not in 



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CLARK'S CODE OF CIVIL PROCEDURE. 123 

some particular or particulars only, but in its entire scope 
and meaning, it shall not be deemed a case of variance 
within the preceding section, but a failure of proof. 

Total failure of proof* — Where the case as alleged in the complaint is 
wholly unproved and a different slate of facts is proven, it is not an immaterial 
variance, but a failure of proof. Carpenter v. Huffsteller, 87 — 273 ; Grant v. 
Burgwyn, 88—95. 

See also cases cited under § 269, ante. 

See. 27 2 • Amendments of course after allowance of rle- 
murrer. C. C. P., s. 131. 1871-^2, c. 173, s. 1. 

Any pleading may be once amended of course, without 
costs, and without prejudice to the proceedings already had, 
at any time before the period for answering it expires ; or 
it can be so amended at any time, unless it be made to ap- 
pear to the court that it was done for the purpose of delay, 
and the plaintiff or defendant will thereby lose the benefit 
of a term for which the cause is, or may be, docketed for 
trial ; and if it appear to the court or judge that such amend- 
ment was made for such purpose, the same ftiay be stricken 
out, and such terms imposed as to the court or judge may 
seem just. After the decision of a demurrer, the judge shall, 
if it appear that the demurrer was interposed in good faith, 
allow the party to plead over upon such terms as may be 
just. If the demurrer be allowed for the reason that several 
causes of action have been improperly united, the judge 
shall, upon such terms as may be just, order the action to 
be divided into as many actions as may be necessary to the 
proper determination of the causes of action therein men- 
tioned. 

JudgmeDt npon overrnllng demarrer.— The opposing party is entitled 
to judgment on the overruling of a demurrer, unless the judge, in his discretion, 
grant leave to the party to plead over. Ransom v. McClees, 64 — 17 ; Merwin 
V. Ballard. 65—168 ; Love v. Com'rs, 64—706 ; Walsh v. Hall, 66—233 ; Wil- 
son V. Moore, 72 — 558. 

Since act 1871-% ch. 178, amending this section.— Since the act of 

i87i-'2. amending this section, the defendant has a ri^At to answer over on the 
overruling of the demurrer. Moore v. Hobbs, 77 — 65. 

The defendant has the right to put in an answer after the overruling of a 
demurrer, if it appears that the demurrer was interposed in good faith. Bron- 
son V. Insurance Co., 85 — 411. 

Where a demurrer was overruled in the court below with leave to the defend- 
ant to answer over, and to plaintiff to amend complaint, althottgh the demurrer 
is sustained on appeal, yet no final judgment will be entered in the case, but it 



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124 CLARK'S CODE OF CIVIL PROCEDURE. 

will be remanded for further proceeding in the court below, under the leave 
granted. Morris v. Gentry, 89 — . 

If demurrer Is ftirolODM. — But when the demurrer is frivolous, the matter 
is entirely in the discretion of the court. Dunn v. Barnes, 73 — 273 ; Cowan v. 
Baird, 77 — 201. 

Demnrrer for want of parties* — Where a demurrer for want of parties is 
sustained, an amendment making the additional parties is proper. Reynolds v. 
Smathers, 87 — 24. 

Amendment not allowed^ when. — No amendment is allowable where the 
proof establishes a case wholly different from the one alleged in the complaint. 
Carpenter v. Huffsteller, 87 — 273 ; Grant v. Burgwyn, 88 — 95. 

Where a demurrer that the plaintiff is not the proper party to bring the action 
is sustained, the action must be dismissed. Jones v. McKinnon, 87 — 294. 

Conrt may order action divided.— Under this section an action containing 
a cause of action founded on tort and one founded on contract, can, on motion, 
be divided in the superior court, but not in the supreme court. Doughty v. 
Atlantic & North Carolina Railroad Company, 78—22. 

Where two causes of action are improperly joined, the court may order the 
action to be divided. Street v. Tuck, 84 — 605 ; Finch v. Baskerville, 85 — 205. 

Where the causes of action can not be diylded.— Where the several sup- 
posed causes of action can not be divided and separately pursued, the com- 
plaint can not be obnoxious for duplicity. England v. Garner, 86 — 366. 

Demurrer sustained^ plaintiff should pay costs.— When a demurrer of 
the defendant is sustained, the plaintiffs should pay costs, and then it is in the 
discretion of the court if they shall be allowed to amend. Netherton v. Cand- 
ler, 78 — 88. See Bronson v. Ins. Co.. 85 — 411. cited above. 

Affldayit In attadiment amended. — The court can allow the amendment 
of an affidavit upon which a warrant of attachment issued, although the former 
affidavit is wholly insufficient. Brown v. Hawkins, 65 — 645. 

Defective statement of a cause of action.— There is a wide difference be- 
tween a defective statement of a cause of action and a statement of a defective 
cause of action. If, at any time, it appear that the court has no jurisdiction, 
or the plaintiff no cause of action, the court may stop the proceedings and dis- 
miss the action. If, however, there is merely a defective statement of a cause 
of action, this can not be done. Garrett v. Trotter, 65 — 430. 

Amendment after verdict. — Where a complaint fails to allege the assign- 
ment of the notes sued on, an amendment to that effect will be allowed after 
verdict. Pearce v. Mason, 78 — 37. 

Causes of action arising prior to C. C. P.— This section has no applica- 
tion to actions brought upon causes of action arising prior to the adoption of the 
Code. Matthews v. Copeland, 80 — 30. 

[Note. — The exemptions from the C. C. P. system seem repealed by the 
Code of 1883 in every instance except as regards the statute of limitations.] 

Sec. 273. Amendments by arder. C. C. P., 8. 132. 

The judge or court may, before and after judgment, in 
furtherance of justice, and on such terms as may be proper, 
amend any pleading, process or proceeding, by adding or 
striking out the name of any party ; or by correcting a mis- 
take in the name of a party, or a mistake in any other 
respect ; or by inserting other allegations material to the 
case ; or when the amendment does not change substau- 



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CLARK'S CODE OF CIVIL PROCEDURE. 125 

tially the claim or defense, by conforming the pleading or 
proceeding to the facts proved. 

Amendments liberally allowed. — Amendments to pleadin^^s, which further 
justice, speed the trial of causes, or prevent unnecessary circuity of action and 
unnecessary expense, should be liberally allowed on proper terms. Com'rs v. 
Blair, 76 — 136. 

Large liberty of amendment allowable. Garrett v. Trotter, 65 — 430 ; Wilson 
V. Moore, 72—558. 

Amendment discretionary and not appealable. —Allowing or refusing 
amendments to pleadings is a discretionary matter and not reviewable on appeal. 
Henry v. Cannon, 86^24 ; Wiggins v. McCoy, 87—499 ; Gill v. Young, 88—58. 

The superior courts possess, independent of the C. C. P., an inherent discre- 
tionary right to amend pleadings, or allow them to be filed at any time, unless 
prohibited by some statute, or unless vested rights are interfered with. Gilchrist 
V. Kitchen, 86—20. 

Where the plaintiff voluntarily amends his complaint by entering a nolptos, as 
to certain causes of action, it is a matter of discretion in the court whether he 
shall be allowed to re-instate them. Grant v. Burgwyn, 88 — 95. 

Terms of amendment discretionary.— When the superior court has power 
to grant leave to amend, the question of the terms on which it may be done, is 
entirely within the discretion of the judge. Robinson v. Willoughby, 67 — 84. 

Amendment of summons. — It is error for a court to refuse to amend a sum- 
mons npon the ground of a want of power. Whether the amendment should be 
allowed is discretionary and not reviewable. Henderson v. Graham, 84 — 496. 

Where a summons was made returnable, and the complaint and answer were 
filed, before the clerk (July, 1869), who transferred the case to the civil issue 
docket at the next term, and the names of counsel were marked thereon : Htld^ 
that at Spring Term, 1870, it was competent for the court to amend the sum- 
mons by niakmg it returnable to the term, in accordance with the act of l868-'69, 
chapter 76. Thomas v. Womack, 64 — 657 ; Chatham v. Crews, 81 — 343. 

Amendment substituting parties.— When a lessor, during the continuance 
of a lease, conveys by deed to a third person, and an action is afterwards brought 
for the rent by the lessor, the court has the power to substitute the assignee as 
plaintiff, in his stead. Bullard v. Johnson, 65 — 436. 

An action in the name of an individual may be changed by amendment into 
an action by the firm of which he is a member. Martin v. Young, 85 — 156. 

An amendment which permits a change and substitution of plamtiffs is allow- 
able, Reynolds v. Smathers, 87 — 24. 

Additional parties. — A creditor, ignorant of proceedings to distribute a fund, 
may come in and prove his claim after the time limited for presenting demands. 
Bank of Washington v. Creditors, 80 — 9 ; Glenn v. Farmers' Bank, 80—97. 

Additional parties defendant can be made by amendment. Isler v. Kgonce, 
83—55. 

Clianging nature of action.— In an action for possession of land based on 
a deed absolute on its face, but which was held on ajppeal to be a mortgage, and 
a new trial granted : Held^ that upun such trial the court might allow amend- 
ment so as to demand a foreclosure instead of possession. Robinson v. Wil- 
loughby, 67 — 84. 

Qufre. Whether an action ex delicto can be amended into an action ex con- 
tractu. Foster v. Penry, 76—131. 

Amendments not allowed. — Amendments are not allowed when the effect is 
to deprive the otlier party of defenses which would be available against a new 
action, Christmas v. Mitchell, 3 Ire. Eq., 535; Cogdell v. Exum, 69 — ^464; 
Henderson v. Graham, 84 — 496 ; Gill v. Young, 88 — 56. 

Rights of opposite party. — When by an amendment the complaint con- 
tains matter to which a former answer was not responsive, or a new defendant 



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126 CLARK'S CODE OF CIVIL FROCEDURE. 



was brought iir, leave to file an answer to meet the change can not be refused. 
Gill V. Young, 88—56. 

A radical amendment entitles the other side to a mistrial. March v. Verble, 
79—19- 

Conditional amendment ; terms broken.— Where leave is given a defend- 
ant to file an amended answer, provided no matter be set up therein which will 
affect orders previously made in the cause, such amended answer will be 
stricken out if it be not compatible with the terms upon which leave was. 
e[ranted. The motion to strike out the answer was made in apt time under the 
facts of this case. Crump v. Thomas, 89 — . 

Amendment during trial. — ^When the court can perceive that the opposing 
party has not been misled by a defect in the pleading, an amendment should 
be allowed on the trial. Garrett v. Trotter, 65 — 430. 

An endorsement in blank of negotiable paper should be filled by order of the 
court before judgment j if not done, it may be done afterwards by the court 
under this section. Lilly v. Baker, 88 — 151. 

Certainty of pleading not relaxed.— The certainty of pleading is not re- 
laxed by allowing amendment so as to conform the pleading to the facts as 
proven. The judgment must conform to the pleading as well as to the facts. 
Haughton v, Newberry, 69 — 456. 

When a petition to sell land describes a certain tract which was sold, and 
afterward it was attempted to be shown that another tract was intended to have 
been embraced in the petition, and was actually sold under the order of sale, 
and an order was asked to amend the proceedings in accordance with the said 
claim, the court had no power to make such amendment. Stafford v. Harris, 
72—198. 

Amendment after Jadgrment. — he judge has power to amend after judg- 
ment. Penny v. Smith, Phil., 35. 

The judge's discretion to amend after judgment can not be reviewed. Lip- 
pard V. Roseman, 72 — 427; Dobson v. Chambers, 78 — 334. 

When one creditor obtains a judgment and begins supplemental proceedings, 
it is error to amend the proceedings so as to allow other creditors to make them- 
selves parties, except by consent. Righton v. Pruden, 73 — 61. 

After verdict, a plaintiff who failed to allege an assignment to him of the 
notes sued on (the defendant in his answer alleging it) would be allowed to 
amend by setting up the assignment. Pearce v. Mason, 78 — 37. 

An informal judgment can be amended after the lapse of a year. Farmer v, 
Willard, 75—401; Wall v. Covington, 83 — 144. 

Amendment of execution. — The superior court has no power to amend 
an execution, so as to divest the right of an innocent purchaser at sheriff 's sale 
thereunder. Williams v. Sharpe, 70 — 582. 

Amendment of tlie record; findings of fact.-— On a motion to amend the 
records of a court, the facts found by the judge are conclusive in an appeal to 
the supreme court.. Upon such motion strict proof will be required, especially 
when the rights of minors are involved. Murrill v. Humphrey, 76—414. 

A court can always amend its records so as to make them speak the truth. 
Perry v. Adams, 83 — 266; State v. Swepson, 83 — 584. 

It is the duty of every court to amend its records, if erroneous, to make them 
speak the truth, regardless of the consequences to parties, to third persons and 
of the lapse of time. Walton v. Pearson, 85 — 34. 

SembUy an absolute order to amend the record has the legal effect of an actual 
amendment. Ibid. 

^ H a judge mistakes his powers or otherwise errs in amending the record of a 
case, the only remedy is by appeal. Another judge of the superior court, and 
in another cause, certainly can not reverse an order to amend the record of a 
case. Ibid. 

Supplementary proceedings.— Where the affidavit upon which supple- 
mentary proceedings issued is insufficient, it can be amended. It is otherwise 



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CLARK'S CODE OF CIVIL PROCEDURE, 1 27 

as to afBdavits upon which an attachment, injunction or arrest has been granted, 
Weiller y. Lawrence, 81 — 65. 

Attachment. — The court has power to allow the amendment of an affidavit 
upon which a warrant of attachment has issued, alihoi^h the former affidavit 
is wholly insufficient. Brown v. Hawkins, 65 — 645. 

Does not anply to amendmentii aft«r trial.— This section has an applica- 
tion only to ajBcndments made before, or at, the trial, and not at a time subse- 
quent. Askew V. Capehart, 79 — 17. 

Amendment most be by the same court.— An amendment of a judgment 
or order can only be made in the court where it was rendered. Adams v. 
Reeves, 76 — 412, 

Pending appeal to supreme court. — When an appeal is taken from the 
superior court to the supreme court, the whole case is laken up; so that a pro^ 
cceding for a new trial on account of newly discovered evidence can not be in- 
stituted in the superior court pending such appeal. Bledsoe v. Nixon, 69 — 81. 

In appeals from a Justice. — The superior court has power to amend a war- 
rant issued against a person by a justice of the peace for failure to work the 
public roads, by inserting ** The State" as plaintiff, instead of the overseer. 
Stale V. Cauble, 70 — 62. 

In an appeal from a justice's judgment, it is in the discretion of the judge pre- 
siding to allow amendment of any plea before the justic, or the substitution of 
new ones, upon such terms as may be just. Hinton v. Deans, 75 — iS. 

The defendant on an appeal should be allowed, in the superior court, to file 
a plea which he had been refused f>ermission to do before the justice. Lane 
V. Morton, 78—7. 

Or to amend his answer to make it what he intended it to be before the jus- 
tice of the peace. Heyer v. Beatty, 76 — 28. 

If a written answer, filed in a justice of the peace*s court, is lost, the judge 
of the superior court can allow the pleadings to be perfected in his court. Fai- 
son V. Johnson, 78 — 78. 

The admission or rejection of an answer offered in the superior court after 
an appeal from a justice's judgment, is discretionary with the judge. Johnson 
V. Rowland, 80 — i ; Thomas v. Simpson, 80 — 4. 

The superior court, on sufficient proof, can amend the record of an appeal 
from a justice, so as to make it speak the truth. Bank v. Mc Arthur, 82 — 107. 

An amendment of summons in the superior court, that would, if made in the 
justice's court, have given the justice jurisdiction, should be refused. Allen v. 
Jackson, 86 — 321. 

Sec. 274. Relief in case of mistake, surjrrise or excusable 
neglect. C. C. JP., s. 133. 

The judge may likewise, in bis discretion, and upon such ^ 
terras as may .be just, allow an answer or reply to be made, 2 
or other act to be done, after the time limited, or by an or- : 
der to enlarge such time; and may also in his discretion, . 
and upon such terms as may be just, at any time within 
one year afte^. notice thereof, relieve a party from a judg- '^ 
ment, order, br'^oUier proceeding taken against him through ^ 
his mistake, inadvertence, surprise or excusable neglect, and ^ 
may supply an omission in any proceeding; and whenever 
any proceeding taken by a party fails to conform in any re- 



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128 CLARK'S CODE OF CIVIL PROCEDURE. 

spect to this Code, the judge may, in like manner and upon 
like terms, permit an amendment of such proceeding, so as 
to make it conformable thereto. 

Power discretionary. — The enlai^ement of time to file pleadings, and the 
granting or refusing leave to do any act out of its proper time, is a matter 
purely in the discretion of the court below and can not bie reviewed on appeal. 
Austin V. Clarke, 70 — 458. 

A motion to vacate a judgment and be allowed to plead on account of excus- 
able neglect, under this section, is addressed to the di scret ion of the pr^iding 
judge, whose decision is not subject to review. Simonton v. Lanier, 71 — ^498. 

1 he action of the judge of the superior court, upon such an application is 
not reviewable, unless it appears that he has abused his legal discretion, which 
he does not do by refusing to set aside a judgment, when the application 
does not disclose any meritorious defence to the action. Bank v. Foote, 77 — 131. 

The court, under the present system, (1872,) can not review the facts as 
found in the court below, in an application for relief, &c., under this section. 
Jones V. Swepson, 79--510. 

The judge has the discretionary power to permit pleadings to be filed after 
the time limited by law. Gilchrist v. Kitchen, 86—20. 

The judge has a discretionary power to allow or refuse amendments to plead- 
ings. Henry v. Cannon, 86^24. 

Amendment of pleadings after rerdict. — A defect in a complaint is not 
cured by a verdict, if such defect is the total omission of an important allega- 
tion, but an amendment could be allowed after verdict. Pearce v. Mason, 
78—37. 

Witllln one year* — When a judgment was rendered against a defendant in 
a justice's court, and on appeal affirmed in the superior court, he making no 
defence, and mort than a year afterwards^ the judgment was set aside for want 
of notice, the judge had no flower to make such oi^er. McDaniel v. Watkins, 
76—399. 

Under this section, a motion made after the expiration of a year, to set aside 
a judgment, can not be allowed. Mabry v. Erwin, 78 — ^45. 

A motion, under this section, to correct errors and mistakes in a judgment, 
must be made within one year after rendition of such judgment. Askew v. 
Capehart, 79 — 17. 

Where the summons was personally served on the defendant, he must make 
his motion to set aside the judgment, under this section, within a year after its 
rendition ; but if not, he may make it within one year tAie^t actual notice of the 
judgment. McLean v. McLean, 84 — 366. 

A motion under this section must be made within one year. Young v. Green- 
lee, 85—593. 

Afler one year* — For sufficient cause judgment can be set aside after the 
lapse of a year and a day. Molyneux v. Huey, 81 — 106 ; Deaver v. Erwin, 
7 Ire. Eq., 250 ; Stockton v. Briggs, 5 Jones Eq., 309. 

Want of power. — If a judge refuses to entertain a motion to set aside a 
judgment for any of the causes mentioned in this section, on the ground that he 
has no power to grant it, it is error, and is reviewable on appeal. Hudgins v. 
White, 65 — 393 ; Winslow v. Alexander, 2 D. & B., 9 ; St. v. Locust, 63 — 574; 
Gilchrist v. Kitchen, 86^20. 

Excnsable neglect* — A judgment by default against a party, who has em- 
ployed an attorney to enter his pleas, and such attorney has neglected to do so, 
18 a surprise within the meaning of this section ; and the neglect of the party to 
examine the docket, and see that his pleas are in, is an excusable n^lect. 
Griel v. Vernon, 65 — 76. 

It is proper to set aside a judgment for a want of answer, rendered, after the 
defendant and his counsel had left the court, at a term previous. Deal v. 
Palmer, 68 — 215. 



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CLARK'S CODE OF CIVIL PROCEDURE. 129 

The fact that an order which, in effect, deprived the plaintiff of a right of 
appeal, was made in a cause at midnight, when the plaintiff was absent and 
had no reason to believe the court was in session, and that his counsel was un- 
able to attend the lri<»l, constitutes ** excusable neglect, "and entitles him to 
have such order set a^ide. Long v. Cole, 74 — 267. 

A decree confinoing a sale for partition, will be set aside for accident, mistake, \ 

or surprise. Blue v. Blue, 79—69. \ 

When defendant's counsel had not been informed of the nature of the defence, 
by reason ot illness of defendant, and had consented to the judgment, supposing 
it to be understood by the defendant. Mho had a meritorious defence, it consti- 
tutes excusable neglect, and the judgment should be set aside. Mebane v. Me- 
bane, 80 — 34. 

Where the defendant twice requested the clerk to enter on the docket the name 
of his attorney, which he promised to do, and the attorney himself applied to 
the clerk to examine the plaintiff's complaint, but was unable to see it, and the 
balance of the term was absent as a witness under subpoena, this was such a case 
of excusable neglect as entitles the defendant to have a judgment taken by de- 
fault set aside. Wynne v. Prairie, 86 — 73. 

Where the defendant employed counsel, attended court, and at the instance 
of his counsel had gone home to attend his official duties, who assured him that 
everything had been done to protect him, and the judgment was entered in the 
absence of himself and his counsel and without evidence upon the matters con- 
troverted in the pleadings, this presents a case of excusable negligence. Francks 
v. Sutton, 86 — 78. 

Where counsel enters an appearance, but fails to lile an answer, the party lit- 
igant, if in no default himself, is entitled to relief against a judgment taken by 
default. Geer v. Reams, 88 — 197. 

Inexcusable neglect.— Failure of a party to attend court, because he knew 
personally nothing about the action and supposed that a witness who had been 
duly summoned would attend, is not "excusable neglect." Waddell v. Wood, 
64 — 624 ; Cobb V. O'Hagan, 81 — 293. 

Where the excusable neglect alleged as ground fo* vacating a judgment is that 
the counsel has misinform^ the party as to the time of holding the court, whereby 
be failed to file an answer, this is insufficient if it appear the defendant did nqt 
suffer Jiarm therely. Clegg v. Soapstone Co., 67 — 302. ' "" " 

Thetact that a defendant supposed a summons which was served on him by 
delivery of a copy, to be a paper in another cause pending between himself and 
the plaintiff, and for that reason took no measures to defend the action, does not 
constitute "excusable neglect." White v. Snow, 71 — 232. 

When a party has counsel who knows that his family are sick so that he can 
not attend at the trial term, yet does not move for a continuance, but agrees to 
go into the trial if allowed to read certain letters in evidence, which he is per- 
mitted to do by plaintiff's counsel, he is not enticed to have the judgment set 
aside on the ground of excusable neglect, though ne would have been, had his 
counsel moved a continuance for his absence and his motion had been denied. 
Skinner v. Bryce, 75 — 287. 

Where parties had knowledge of a suit against them, were in town during the ^/ 
trial term, and did not file any answer, nor communicate their defence to coun- 
•el, their neglect is not excusable. Sluder v. Rollins, 76 — 271. 

NVherea case was set for trial on a particular day, during a regular term of the 
superior court, and a party after correspondence with his counsel, failed to leave 
home in time to reach the court before the lime for trial, his neglect was not ex- 
cusable but gross. Bradford v. Coit, 77 — 72. 

Although no one can be made a party except by his consent or on proper no- 
tice, yet if after an order making one a parly without notice, he appear and ob- 
tain time lo file pleadings, he thereby waives the irregularity and can not have 
a judgment set aside by reason of it. Bradford v. Coit, 77 — 72. 

A\here one wrote to an attorney that he had been sued, but did not request 
him to appear for him, he can not allege his failure to^nswer as a case of sur- 

17 

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130 CLARK'S CODE OF CIVIL PROCEDURE. 

prise, mistake, or excusable neglect. Hyman v. Capehart, 79 — 511 ; Burke v. 
Stokely, 65 — 569. 

Where a defendant, surety to a guardian bond, upon the suggestion of his 
counsel that the recovery against him would be small, admitted the execution of 
the bond, this will not entitle him to have the judgment set aside, upon the re- 
covery proving to be a large one. Hodgin v. Matthews, 81 — 289. 

Where there was an agreement between counsel that no furiher steps would 
be taken in a pending action without notice, and two years after the death of 
defendant's counsel a judgment was taken, neither the plaintiff nor his counsel 
having knowledge or notice of such agreement, and the defendant having failed 
to pay any attention to the case, the defendant's negligence is inexcusable. 
^, Kerchner v. Baker, 82 — 169. 

^{>t x^ t L^ Where a defendant, served with summons, neglects to employ counsel, and 

remains away from the place of trial, he can not have the judgment set aside 
because he did not understand the nature of the action. University v. Lassiier, 
83-38. 

An allegation that a party is misled by a verbal agreement between counsel 
J does not bring the case under this section. Hutchison v. Rumfelt, 83 — ^441. 

Where summons was personally served, but counsel employed by defendant 
failed to enter the pleas, and the defendant made no inquiry about the disposi- 
tion of the case for nearly five years after judgment, his laches were inexcusable. 
McLean v. McLean, 84 — 366. 
• Where the defendant's case was set in the calendar of cases for a day certain, 

and copies of the calendar were printed and distributed to his counsel and oth- 
ers, and also published for two weeks in a newspaper in the town where the 
defendant resided and the court was held, the failure of the defendant to attend 
at the trial was inexcusable neglect, and he is not entitled to have the judg- 
ment obtained against him set aside. Henry v. Clayton, 85 — 371. 

Where it appears that the defendant was sick and unable to leave home to 
attend court when the summons was served upon him, and also expressed a 
doubt whether he was the party meant, and the officer promised that if he found 
on inquiry that he was not the party intended he would let him know, the fail- 
ure of the defendant to have the case attended to was inexcusable neglect, and 
he is not entitled to have a judgment, taken by default against him, struck out. 
De Priest v. Patterson, 85 — 376. 

Where the judgment was rendered by default six months after service of 
summons, against a defendant who did not employ counsel to attend to the 
case, but relied upon the assurances of another to do so, and no defence was 
made by reason of the attorney mistaking the case, and no further attention 
was given to the matter until a year after judgment, this is inexcusable negli- 
gence. Norwood v. King, 86 — 80. 

A defendant who fails to employ counselor appear, because he supposed that 
. he was not required by law to answer the complaint until served with a copy, 
is not entitled to relief against a judgment obtained against him. Churchill v. 
Insurance Co., 88 — ^205. 

Nei^lect of eoanseL — The failure of an attorney to enter an appearance in a 
case in which he had been merely written to to appear for the defendant, by 
reason of which a judgment by default was taken against the defendant, does 
not make a ca>e for relief within the provisions of this section. Burke v. 
Stokely, 65 — 569; Hyman v. Capehart, 79 — 511. 

Judgment should be set aside where the lawyer represented both parties. 
Molyneux v. Huey, 81 — 106; Moore v. Gidney, 75 — 34. 

If an attorney appear, and judgment be entered against the client, the court 
will not set it aside, though the attorney had no warrant, if he be solvent and 
able to respond in damages for his officiousness. University v. Lassiter, 83 — 38. 

Distinction drawn between the omissions of an attorney and the personal in- 
attention of a suitor in applications for relief under this section. Ellington v. 
Wicker, 87 — 14. 

Where the negligence is that of the attorney and not of the party a motion to 



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CLARK'S CODE OF CIVIL PROCEDURE. I3I 

set aside the judgment obtained by default should be granted. English v. Eng- / M-a T. ^ A 
lish, 87—497. 

Neglect on the part of counsel in some cases is not allowed to prejudice a 
party; otherwise when the negligence is that of the party himself. Boing v. 
R. & G. R. R. Co., 88—^2. 

Feme corert* — A judgment obtained against a married woman upon an offi- 
cial bond, signed by her as surety, without the written assent of her husband, 
will be set aside on motion. Harris v. Jenkins, 72 — 183. 

A wife, sued wiih her husband, who relied on him to employ counsel, which 
he fails to do, can have the judgment set aside if motion is made within one 
year after notice of the judgm ;ni. Nicholson v. Cox, 83 — 48. 

Borden of proof.-r-In an application to vacate a judgment the burden is on 
the applicant to show a proper ground for such relief. Sluder v. Rollins, 76— 
271 ; Kerchner v. Baker, 82 — 169. 

When the parlies to a final judgment fail to appeal by their own default, a 
rehearing is not a matter of right, but rests in the sound discretion of the court. 
Before the court will exercise such discretion, under this section, it must appear, 
not only that injustice has been done, but that it was done without laches on ^ ^ 
the part of the party applying. 'Williams v. Williams. 70^665 ; Grant v. Ed- 
wards, 88 — 246. 

A party seeking to vacate a judgment under this section is in default, and the 
onus is upon him to show facts which would make the refusal to vacate an *^^ 
abuse of discretion Kerchner v. Baker, 82 — 169. 

A motion to strike out an entry of satisfaction of judgment on the ground of 
a mistake of fact, must be refused unless the mistake is shown by a preponder- 
ance of proof. Clayton v. Johnson, 82 — 423. 

Where attorneys who represent a defendant, after his death assume to repre- 
sent the administrator and consent to his being made a party wiihout actual 
notice, the administrator cannot have the judgment set aside six years there- 
after without alleging a meritorious defence, or mismanagement of counsel, or 
explaining his long delay. Weaver v. Jones. 82 — 440. r ^ C 

A party seeking to have a judgment set aside for excusuble neglect, must set J y ' 
out in his application ^printa fjid^ v^ljd defence. The burden of overcoming 
the presumption which exists in favor 6T OTe^validity of the juc'gment is upon 
the applicant who seeks to set it aside. Mauney v. Gidney, 88 — 200. 

Set a8lde in part^ or modified,* — A judgment may be set aside in whole 
or in pari, in the discretion of the court. Geer v. Reams, 88 — 197. 

A court has power to modify a final judgment and make it one by default 
and inquiry. Churchill v. Ins. Co., 88 — 205. 

Erroneous Jadg^ments* — An enoneous judgment can not be set aside under 
this section. Simmons v. Dowd, 77 — r55. 

IiTftynlar and yoid Jndgments.— Where the defendant has never been 



./ 



scrvea wiih process, nor appeared in the action, a judgment against him may 
be treated as void at any time wiihout any direct proceedings to vacate it. 
Stallings v. Gully, 3 Jones, 344 ; Doyle v. Brown, 72 — 393 ; Condry v. Ches- 
shire. 88 — 375. 

A final judgment by default, entered against a dead man, will be vacated on 
motion. Burke v. Siokely, 65 — 569. 

An application to set aside an irregular judgment, does not come under this 
section. Such a judgment may be set aside, at any time, since it does not de- 
pend on any surprise or neglect of the defendant. Cowles v. Hayes, 69 — 406 ; 
Mabry v. Erwin, 78 — 45 ; Monroe v. Whilied. 79—508 ; Vick v. Pope. 81—22. ^ 

Want of service of summons renders a judgment void. A motion to vacate > . t ^ 
on evidence aliunde is not requisite. Doyle v. Brown, 72 — 393 ; Pender v. ^ - - — ' 
Griffin, 72 — 270. 

An irregular judgment can be set aside at any time. Simmons v. Dowd, 
77—155. 



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132 CLARK'S CODE OF CIVIL PROCEDURE. 

— An ir regular judgment can be avoided only by the yefepdan^ therein. . It is 
valid as to strangers, kollins v. Henry, 78 — 342 ; Jacobs v. Burgwyn, 63—196; 
Hinsdale v. Hawley, 89 — . 

An irregular judgment can be set aside upon parol proof, and within any 
reasonable time. Harrell v. Peebles, 79 — 26 ; Austin v. Rodman, I Hawks, 
71 ; Wade v. Odeneal, 3 Dev., 423 ; Keaion v. Banks. 10 Ired., 381 ; Bender 
V. Askew, 3 Dev., 149; Blue v. Blue, 79 — 69. 

Where the defendant was not served with process, though the appearance of 
counsel for him was entered on the docket, and judgment was taken by de- 
fault, of which the complaining defendant had no notice for 16 years, such de- 
fendant is not estopped from impeaching the decree for irregularity or piher 
causes in a proper proceeding. Koonce v. Butler, 84 — 221. 

The remedy against a defective or irregular judgment. is by a motion under 
this section to set it aside or modify it, and not by an injunction against issuing 
execution on it. Parker v. Bledsoe, 87 — 221. 

A judgment taken against infant d efendonts is irregult^ r. and may be set aside 
at any time, when it appears that there was no service of process upon them 
and no guardian appointed to protect their rights. Larkins v. Bullard, 88 — 35. 

A judgment taken against a party after his death is irregular, and will be set 
asifle in a direct proceeding for that purpose. Lynn v. Lowe 88 — 478. 

RIgrhts of third parlies.— Where the amendment will make the process 
different, in substance, from what it was when issued, the court can not allow 
it if the rights ol third parties will be affected. Phillips v. Higdon, Bus., 380. 

Even an irregular judgment cannot be set aside after the rights of an innocent 
third party have intervened. Vick v. Pope, 81 — 22; Winslow v. Anderson, 3 
D. & B., 9. 

Findings of fact. — Under the present system (1872) the court can not review 
the facts as found by the court below, in an application for relief under this sec- 
tion, but the facts should be found by the judge, in order that the supreme court 
may review his application of the law to them. Clegg v. The White Soap- 
stone Co., 66 — 391; Powell V. Weith, 66 — 423; Jones v. Swepson, 79—510. 

What is mistake, inadvertence, surprise or excusable neglect is a question of 
law, and if the judge below errs in his ruling in regard thereto, the supreme court 
will correct his decision, ^le is, however, the sole finder of the facts upon which 
an application for relief under this section rests. Powell v. Weith, 68 — 342. 

The finding of the judge upon the facts On which the application is based, is 
final. Johnson v. Duckworth, 72 — 244. 

In an application to set aside a judgment under this section, the facts must 
be found, so that the court may review the ruling of the judge, whether the 
judgment was taken by *' mistake, inadvertence, surprise or excusable neglect." 
Oldham v. Snced, 80—15: Smith v. Hahn. 80 — 240; Bryant v. Fisher, 85—69. 

The finding, as a fact, ** that the defendant did not fail to employ counsel in 
consequence of any fraud of plaintiff," is defective, as it constitutes a conclu- 
sion of law, and not a finding of fact. Smith v. Hahn, 80—240. 

Jadgmetlt by consent. — A judgment or order entered by consent of parties 
or their counsel can not be set aside or modified except upon the ground of a 
mistake of both parties or for fraud; and this, by civil action and not by mo- 
tion. Stump v. Long, 84 — 616. 

Interlocutory order. — An interlocutory order by consent can only be set 
aside by consent or for fraud. Edney v. Edney, 81 — I. 

Judgements of former terms. — The judgments authorized to be set aside 
for mistake, surprise and excusable neglect, by this section, are judgments ren- 
dereil at former teijns, and the section does not refer to what takes "jSlace at tHe 
trial term. McCullocK v. Doak, 68 — 267. 

Clerk no Jurisdiction* — The judge, and not the clerk of the superior court, 
has jurisdiction of an application for relief under this section. Griel v. Vernon, 
65—76. 



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CLARK'S CODE OF CIVIL PROCEDURE. I33 

No distinction between adults and Infants.—In an application under this 
section there is no distinction between adult and infant parties, provided the 
latter are represented as required by law. Mauney v. Gidney, 80 — 200. 

B7 the same court* — An amendment of a judgment or order can only be 
made in the court wh er e it wfts origifi^liy rendered. Adams v. Reeves, 76 — 412. 
/^ A judgment can b"e*vacaied only by tl^fc coujTwhich rendered it. A justice's 
\ judgment, docketed in the superior court, can n6r'be ser"asl(le't)y that court 
/ unless the cause is carried up by appeal or recordari. Morton v. Rippy, 
^ 84-611. ^ ^rr- Y^ ^^ 

On motion of a party. — The superior court has no power, under this sec- 
tion, to set aside a judgment on the motion of a stranger to the original action, 
and direct such a stranger to be made a party thereto. Smith v. Newbern, 
73—303. 

A judgment can be set aside for irregularity only at the instance of the party 
prejudiced. Hinsdale v. Hawley, 89 — . 

Apiendoient of tlie record. — The court will in general permit a record to 
be amended, and a judgment to be entered nunc pro tunc^ when it has been de- 
layed by the act of the court or clerk. Bright v. Sugg, 4 Dev., 492; Long v. 
Long, 85 — ^415. 

Every court can amend its own records, if erroneous, so as to make them 
speak tnc truth; and this, regardless of the consequences to parties, third per* 
aons and of the lapse of time. Walton v. Pearson, 85 — 34. 

SemhU^ that an absolute order to amend the record has the legal effect of an 
actual amendment. Ibid, 

Appeal. When the appellant has made out his case on appeal and served 
it, and the same has been returned with exceptions, and he has failed to apply 
to the jud^e to give the parlies a day to settle the case: Quare^ whether the 
facts entitle him to any relief under this section. Kirkman v. Dixon, 66 — 406. 

Pending an appeal to the supreme court no motion can be entertained in the 
lower court to set aside the judgment. Isler v. Brown, 69 — 125; Skinner v. 
Bland, 87—168. 
/ Where a judgment is obtained, as is alleged, by the refusal of the judge to 
/grant a continuance for the absence of the party defendant, he being repre- 
1 sented by counsel and his case submitted to the jury, the remedy is by appeal. 
I It is not ground to m^^ye anoilier ji^dgg. under this section, to set aside the judg- 
ment. Twitty V? Logan, 86 — 712. 

In ttie supreme court. — Although in terms this section applies only to the 
superior court, yet the spirit and equity of its provisions extend to the supreme 
court, and relief in like cases will be administered in cases pending in that court. 
When it appears, therefore, on a petition to rehear an appeal, which had been 
dismissed fojr, want of an undscUkingJor the costs, that such undertaking was 
not filed from sitPexcu 5*01)16 neglect of the appellant, the judgment of dismissal 
will be set aside, and the case restored to the docket. Wade v. Newbern, 73 — 
318. See, also, Home v. Home, 75 — loi. 

Notice of motion. — After a judgment, which has been standing for several 
terms, has been set aside on motion of defendant, no notice of motion to rein- 
state is required. Perry v. Pearce, 68 — 367. 

It is not error to set aside a judgment absolute for an amercement where it ap- 
pears that the defendant had no notice of the rule upon him to show cause. 
Yeargin v. Wood, 84 — 326. 

Supplementary proceeding^. — Where by an order in supplementary pro- 
ceedings a debt due the wife is ordered to be applied to payment of a debt due 
by her husband, the wife is entitled to have such order set aside, she not having 
been a party when such order was made. Williams v. Green, 68 — 183. 

Leave to issue execution. — Where upon service of a «otice of a motion for 
leave to issue execution, the defendant told the sheriff he had a discharge in 
bankruptcy and asked him to write the plaintiff about it, but took no further 



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134 CLARK'S concr of civil procedure. 

action, he will not be entitled to have the leave to bsue execution, granted by 
the clerk, vacated. Hiatt v Waggoner, 82 — 173, 

Exeeation* — ^The court has. no power to antend an execution so as to divest 
the title acquired by an innocent purchasel" without notice. Williams v. Sharpe,. 
70—582. 

Jaslice'sjadgrnietit* — A justice's judgment docketed in the superior court 
can not be impeached, set aside or modified in the superior court except upon a 
recOfdari first had. Cannon v. Parker, 81 — 320 ; Ledbetter v. Osborne, 66 — 
379 ; Birdsey v. Harris, 68 — 92, 

In discretion of judge to allow a new pJea, or amendment of plea below, on 
appeals from justice. Hinton v. Deans, 7^ — 18. 

\ Uen ac//*er//cafa.— Where a motion to set aside a judgment has been re- 
/fused, a subsequent motion upon substantially the same grounds will not be en- 
V tertained. Mabry v. Henry, 83—298. 

Independent actions. — A motion may be made to set aside a judgment 
within a year after its rendition, for excusable neglect, and after that time relief 
may be had against a judgment obtaii>ed by fraud, by an independent ac tion. 
Smith V, Hahn, 80—240:^' o / ^''' '} /, /C C / C . f ^ ^\. ';^/ y jy 

A party to an action is not entitled to' relief by an infdepehdent actW; if hc^ 
could have had the judgment set aside under this section but fails to make the 
motion in due time. Walker v. Gurley, 83 — 429. 

Not a cont^^mpt. — The application to set aside a judgment under this sec- 
tion upon insufficient grounds, is not an act of contempt, which wiD authorize 
the court to imprison the applicant until he shall have paid the debt. Daniel v. 
Owen, 72 — 340. 

Grounds for a motion. — A sii]>enor court can set aside a judgment rendered 
at a former term, for any sufficient cause, which could have been and was not 
pleaded in bar of such judgment when rendered. Jarmanv. Saunders, 64 — 367. 

Where a defendant procured an order for a new trial, which was set aside at 
the next term, at the instance of the plaintiff, the defendant had a right to move 
to set aside the original judgment under this section, and the judge had the right 
to grant the motion if, in his discretion, the facts justified it. Coffield v. War- 
ren, 72 — 223. 

Section 236 of the Code of Procedure (§ 412 (4) of this Code) does not embrace 
all the grounds on which a new trial may be ordered, but the grounds there men- 
tioned are only additional to those set out in this section. Quincey v. Perkins, 
76—295, 

A defendant who withdraws a counterclaim and submits it to a reference, can 
not afterwards have the judgment against him set aside, on the ground that the 
defendant is fraudulently obstructing the reference. Boyden v. Williams, 80 

A discharge in bankruptcy can not be set np on a motion to set aside a judg- 
ment obtained after the discharge. Paschall v. Bullock, 80 — 329. 

Tills mode of proceeding favored. — Application to a judge of a superior 
court, under this section, is preferable to a certiorari from the supreme court, 
when it can be employed for the same purpose. Watson v. Shields, 67 — 235. 

The law favors the hearing and determination of cases on their merits. When, 
therefore, a party moved to set aside a judgment within a year after its rendi- 
tion, and afterwards abandoned that for another proceeding having in view the 
same relief, which was, also, in turn abandoned, the whole may be regarded as 
a continuation of the same proceeding. Howell v. Harrell, 71 — 161. 

Judgrnient taicen prior to act snspendingr tlie €• €• P.— Where, prior to 
the act suspending C. C. P., judgment was taken before the clerk for want of an 
answer and defendant appealed, the judge had power to strike out such judg- 
ment and allow an answer or demurrer to be filed. Waist on v. Bryan, 64 — 764. 

See also notes to preceding section. 



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CLARK'S CODE OF CIVIL PROCEDURE, 135 

Sec. 275. Wtien plaintiff ignorant of name of defendant. 
a C. p., 8. 134. 

WheD the plaintiff shall be ignorant of the name of a de- 
fendant, such defendant maybe designated in any pleading 
or proceeding by any name; and when his true name shall 
be discovered, the pleading or proceeding may be amended 
accordingly. 

Sec. 270. Errors or defects not suhstanti€U to be disregarded. 
It.C.fC.3, 88. 5, 6. C. C. P., 8. 135. 

The court and the judge thereof shall, in every stage of 
the action, disregard any error or defect in the pleadings or 
proceedings, which shall not affect the substantial rights of 
the adverse party ; and no judgment shall be reversed or 
affected, by reason of such error or defect. 

Defect in naaie ef party. — A defect in the name of a defendant in the sum- 
mons is cured by a judgment by d<^fault rendered against him. It would be 
also cured by an appeal by defendant without having moved to dismiss. Claw- 
son V. Wolf, 77 — lOO. 

A court, however, has no right to amend process returned at a former term, 
without notice to the persons whose rights are to be affected. Simpson v. 
Simpson, 64 — 427. 

Where pleadings are reasonably certain.— Where the pleadings, and is- 
sues made by them, are reasonably certain and understood by the parties, ex- 
ceptions thereto will be disregarded. Moore v. Edmiston, 70-^510; Gorman 
V. Bellamy, 82 — 496. 

Tarlance between svmmons and complaint*— It is error to dismiss a 
complaint because the defendants are summoned to answer the complaint 
of A and B, and the complaint is in the name of A, B and others. Wilson v. 
Moore. 72—558. 

Where the summons indicates a different form of relief from that set out in 
the prayer of the complaint, the variance should be disregarded. Wilson v. 
Moore. 72 — 558. 

Tariance between allegation and proof. — No variance between the alle- 
gation in a pleading and the proof shall be deemed material unless it have 
actually misled the party. Gibbs v. Fuller, 66 — 116. 

Where a complaint sets out a cause of action, which would have been in tro- 
ver under the old practice, while the proof shows a claim in assumpsit^ it is an 
immaterial variance and should be disregarded. The distinction between the 
forms of actions at law having been abolished, a party can not be allowed to 
avail himself of an objection founded on them. Oates v. Kendall, 67 — 241. 

Although the plaintiff 's complaint may set out the facts and ask relief, upon 
an action on a special contract, yet, upon a ruling of the court that he can not 
recover upon the special contract, he is entitled to proceed with his case and 
recover upon the common counts in general assumpsit, without any amendment 
of the pleadings. Jones v. Mial, 82 — 252. 

5^^ ^§ 269, 270, 271, ant€, and the cases and notes under them. 



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136 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 277 • Suppletnental pleadings. C. C. I*; 8. 136. 

The plaintiff and defendant respectively may be allowed 
on motion to make a supplemental complaint, answer or 
reply, alleging facts material to the case occurring after the 
former complaint, answer or reply, or of which the party 
was ignorant when his former pleading was made, and 
either party may set up by a supplemental pleading, the 
judgment or decree of any court of competent jurisdiction, 
rendered since the commencement of such action, determin- 
ing the matter in controversy in said action, or any part 
thereof, and if said judgment be set up by the plaintiff, the 
same shall be without prejudice to any provisional remedy 
theretofore issued or other proceedings had, io said action 
on his behalf. 

Pleadings should not state the evidence, but the facts, which are conclusions 
from the evidence, according to their legal effect ; and complaints should avoid 
stating matters which if traversed would not lead to a decisive issue. Crump v. 
Mims, 64 — 767. 



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CLAKK S CODE OF CIVIL PROCEDURE. 



137 



IITLH VIII. 



PAOCEDXJEE IN SPECIAL PBOCEEDIirGS. 



Section. 

278. Provisions of Code applica- 

ble to special proceedings. 

279. Summons in special pro- 

ceedings, what to contain. 

280. Return of summons. 

281. Complaint in special pro- 

ceedings ; when filed. 

282. Plaintiff failing to file com- 

plaint or petition within 
the time for defendant's 
appearance, may be non- 
suited. 

283. Time of filing pleadings may 

be enlarged. 



Section. 

284. When all parties ask same 

relief. 

285. In what cases clerk may 

hear summarily. 

286. If any of the petitioners are 

infants, judge must review 
order. 

287. How special proceedings to 

be commenced. 

288. Orders, &c. , to be signed by 

judge. 

289. No reports set aside for triv- 

ial defects. 



Si'c. 27s. PvorisioHH of Code apidicuhle to special proceed- 
in gn. 

The provisions of the Code of Civil Procedure are appli- 
cable to special proceedings, except as otherwise provided. 

What are and what are not special proceodings.— -Any proceeding that 

under the old mode was commenced by capias ad respondendum, or by a bill in 
equity for relief, is a " civil action ;" any proceeding, that under the old mode, 
might be commenced by petition, or motion upon notice, is a "special proceed- 
ing." Tate V. Powe, 64 — 644. 

A suit to recover posession of land is a civil action, and not a special proceed- 
ing. Therefore, the summons (by the act of l868-'69, chapter 76,) is returnable 
to term time, and not before the clerk. Woodley v. Gilliam, 64 — 649. 

Si\' ca>cs cited under J:^ 127, ante. 

Suiiiiuons and complaint required. — A special proceeding by a creditor 
against an executor or administrator for an account must be by summons and 
complaint in the first instance. Where the plaintiff in such proceedings files 9 
memoranda of evidences of tlebt but no complaint, it is irregular. Isler v. Mur- 
phy, 76—52. 

Probate court has Jurisdiction. — The probate court, and not the superior 
court at term, has jurisdiction to correct a mistake in partition proceedings in 
which there is no pecuhar equitable ingredient. Wohab v. Smith, 82 — 229. 

Probate court has not jurisdiction.— The probate court has no jurisdic- 
tion to provide for the payment of the debts of a lunatic contracted prior to the 
lunacy. lilake v. Respass, 77 — 173. 

Nor to try the question whether such a debt is owing or not. Smith v. Pip- 
kin, 76 — 569. 

CostJt* — Costs are allowed, as in civil actions, ^z. Mayo v. Jones, 78 — 40b. 

IS 



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138 CLARK*S CODE OF CIVIL PROCKDURE. 

ConcmTent Jurisdiction. — The probate and superior courts have concur- 
rent jurisdiction to settle estates. Haywood v. Haywood, 79—42 ; Britton v. 
Davidson, 79 — ^423 ; Devereux v. Devereux, 81 — 12. 

Aiso over lunatics and their estates. Smith v. Pipkin, 79 — 569. 

Also to compel an administrator to account. Pegram v. Armstrong, 82 — 326. 

Feme COVeri*. — A judgment in special proceedings is not conclusive on a 
feme covert whose husband is not made a party. Gulley v. Macy, 81 — 356. 

Sec. 279* Summons in speciiU proceedings ; wUat to con^. 
tain. 

The summoDS in special proceediDgs shall command the 
officer to summon the defendant to appear at the office of 
the clerk of the superior court, on a day named in the sum- 
monsy to answer the complaint or petition of the plaintifif. 
The number of days within which the defendant is sum- 
moned to appear shall in no case be less than ten exclusive 
of the day of service. 

Smnmons necessarj* — The appointment of a trustee, in cases where the 
former trustee has died, removed or become incompetent, can not be done on an 
ex parte motion or petition. The application is in the nature of a civil action, 
and all persons interested must be made parties and have full time to set up their 
rights. Guion v. Melvin, 69 — 242. 

In a special proceeding by a creditor against an executor or administrator, 
both summons and complaint are necessary. Isler v. Murphy, 76 — 52. 

See § 284, post. 

Amendment of smnmons* — Process issuing from a court may be amended, 
but not where third persons have acquired rights and the amendment is m such 
a matter that their rights may be prejudiced by it. Phillips v. Holland, 78 — 31. 

If proper time not allowed. — A summons served on a defendant, com- 
manding him to answer on a day certain, which day is less than twenty days 
from the time of service, is not necessarily on that account void, and the pro- 
bate judge is not bound to dismiss it. He should have allowed the defendant 
the time allowed by the Code for an appearance. Gu\on v. Melvin, 69 — 242. 

If proper time is not allowed, the cause should be retained — not dismissed. 
Weiller v. Laurence, 81 — 65. 

Compatatlon of time. — In computing the ten days before the beginning of 
a term required for the service of a summons, it is a rule settled by long prac- 
tice, to include the day of service and exclude the return day, or e converse^ 
Taylor v. Harris, 82 — 25. 

Note. — This section excludes the day of service, and it also reduces the time 
in proceedings before the clerk from twenty days to ten. 

Sec. 280. Return of sum,m,ons. C C P., «. 75. 

The officer to whom the summons is addressed shall note 
on it the day of its delivery to him ; if required by the 
plaintiff he shall execute the same immediately. When 
executed he shall immediately return the summons, with 
the date and manner of its execution, by mail or otherwise, 
to the clerk of the court issuing it. 



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CLARK'S CODE OF CIVIL PROCEDURE. 1 39 

Retornable before the elerk. — The summons in special proceedings is re- 
turnable before the clerk. Tate v. Powe, 64 — 644. 

Sheriff's fees and retain* — A sheriff is not compelled to execute a sum- 
mons until his fees are paid, but he is required to make return of all process 
coming into his hands,' and is liable for any failure to do so. Jones v. Gupton, 
65 — 48; Johnson v. Kennedy, 70--435. 

Notification to sheriff* — An officer, notified of the necessity of prompt 
measures for the execution of process placed in his hands, should take care to 
execute it without delay. Wasson v. Linster, 83 — 575. 

Sec. 281. Complaint in case of special proceedings / when 
filed. C.C.r.,s.76. 1876''7,c.241,s.4. 

It shall be sufficient for the plaintifif to file his complaint 
or petition with the clerk of the court to which the sum- 
mons is returnable, at the time of issuing the summons, or 
within ten days thereafter. 

Sec. 282. Blaintiff failing to file complaint or petition 
mithin the time for defendant's appearance^ may be non- 
suited. C. C. P., s. 78. 

If the plaintiff shall fail to file his complaint or petition 
within the time limited by the summons for the appear- 
ance and answer of the defendant, the defendant shall be 
entitled to demand judgment of non-suit against the 
plaintiff. 

When plaintiff can take a non-SOit*— This provision does not prevent the 
plaintiff from taking a non-suit at his own election wherever only a judgment 
for costs can be rendered against him. When the answer would just'fy an 
affirmative relief to the defendant, he can not. McKesson v. Mendenhali, 
64 — 502. 

When plaintiff can not take a non-snit. — If the defendant set up a coun- 
terclaim the plaintiff can not take a non-suit. Pumell v. Vaughan, 80—46. 

A plaintiff who has gotten possession under claim and delivery he can not 
take a non-suit and cut off defendant's pleas. Manix v. Howard, 82 — 125. 

A motion to non-snit not a snbstitate for a demnrrer.— A motion to 

non-suit can not be made a substitute for demurrer. If a complaint does not 

' show a cause of action the defendant should demur. He has a right to move 

for non-suit onlv under the provisions of this section. Andrews v. Pritchett, 

66-387. 

Non-snit is not a retraxit. — Entry of '* non-suit, judgment against 
plaintiff for costs," is not a retraxit, Wharton v. Currituck, 82 — ii. 

Sec. 283. Time of filing pletidings may b€ enlarged^ C. €• 
P., s. 79. 

The time for filing the complaint, petition or of any 
pleading whatever, may be enlarged by the court for good 
cause shown by aflQdavit, but it shall not be enlarged by 
more than ten additional days nor more than once, unless 



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140 CLARK'S CODE OF CIVIL PROCEDURE. 

the default shall have been occasioned by accident over 
which the party applying had no control, or by the fraud of 
the opposing party. 

The superior courts possess an inherent right, independent of the C. C. P., 
to allow pleadings to be tiled at any time, unless prohibited by the statute or 
unless vested rights have intervened. Gilchrist v. Kitchen, 86---20. 



Sec, 284, When all parties ask same relief. C C. JP., 8. 418. 
1808''fP, e. 93, s. 1. 

If all the parties in interest join in the proceeding and 
ask the same relief, the commencement of the proceeding 
shall be by petition, setting forth the facts entitling the 
petitioners to relief, and the nature of the relief demanded. 

Partition. — A petition for partition must give a description of the land and 
set forth that the parties are tenants in common and in possession, in order to 
give the court jurisdiction. Alsbrook v. Reid, 89 — . 

Ac tiou. against administrator. — Every act ion brought in the probate court, 
to recover a debt of an administrator, is necessarily a creditor's bill. Ballard 
v. Kilpatrick, 71 — 281. 

Sec, 285, In what cases clerk may hear summarily, O, C 
i\, s. 419. 18ii8''9, c, 93, s, 2, 

Id such cases, if all persons to be affected by the decree, 
or their attorney, shall have signed the petition, and they 
be of full age, the clerk of the superior court shall have 
power to hear the petition summarily, and to decide the 
same; if either or any ot the petitioners shall be residing 
out of the state, an authority from him or them, to the at- 
torney, in writing, must be filed with the clerk, before he 
shall make any order or decree to prejudice their rights. 

Sec. 280. If any of the petitioners are infants, Judge must 
review order. C. C. P., s. 420. 1868-*9, c. 93, 8. 3. 

If any of the petitioners be an infant, or the guardian of 
an infant, acting for him, no final order or judgment of the 
clerk, affecting the merits of the case, and capable of being 
prejudicial to the infant, shall be valid, unless submitted 
to, and appi*oved by, the judge of the court in or out of 
term. 

Proceedings require approval of judge only where petitioners are infants and 
proceedings are ex patte. Staflfordv. Harris, 72 — 198 ; Mauney v. Pemberton, 
75—219. 



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CLARK'S CODE OF CIVIL PROCEDURE. I4I 

Sec, 287* How speciul proceedinga to be commenced. €. C 
r., 8. 421, 1S0S''9, c 93, 8. 4. 

When special proceedings are liad against adverse parties, 
they shall be commenced as is prescribed for civil actions. 

Sumnions r<*qaired. — The appointment of a trustee by a judge of probate, 
in cases where the former trustee has died, removed from the county, or become 
incompetent, can not be done on an ex parte motion or petition. The applica- 
tion forstich appointment is in the nature of a civil action, and all persons in- 
terested must be made parties, and have full time and opportunity to set up 
<heir respective claims. Guion v. Melvin, 69 — 242. 

Motion to enter satisfaction of a Judgment. — A proceeding by a motion 
supported by affidavits after a notice to the opposite party, to have satisfaction 
of a judgment entered of record upon the ground that it has been paid since its 
rendition, is the appropriate remedy in such a case, but is neither a special pro- 
ceeding nor a civil action. It is only a motion in a cause still pending. Fore- 
mar. V. Bibb, 65 — 128. 

•^^ §§ 279 and 284, anU^ an<l cases there cited. 

Sec. 2S8, Ordf-rH, ttV., to he Higned by judge, t\ C, P,, 8, 
422. ISOS-'f}, c, 93, 8. 5, 1872'\3, c. 100. 

Every order or judgment in a special proceeding, which 
is required to be made by a judge of the superior court, 
either in or out of terra, shall be authenticated by his 
signature. 

Directory only.— The act requiring the signature of a judge to authenticate 
his judgments and decrees, is directory only, and such signature is not essential 
to their validity. Matthews v. Joyce, 85 — 258 ; Rollins v. Henry, 78 — 342. 

Sec. 289. No report 8et aside for tririal defect, C, C 1*., 8. 
424. 18U8'''9, c. 93, 8. 7. 

No leport or return made by any commissioners shall be 

set aside and sent back to them, or others for a new report, 

by reason of any defect or omission not affecting the sub 

stantial rights of the parties, but such defect or omission 

may be amended by the court, or by the commissioners, by 

permission of the court. 



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p^^" 



CLARK S CODE OF CIVIL PKOCKDURET. 



TITLE IX. 

OF TH£ PROVISIONAL BEMEBIE& IN CIVIL AC- 
TIONS, 

Chap. I. Arrest jind Bail. 

II. Claim and Delivery of Personal Ppoferty. 

III. Injunction. 

IV, Attachment. 

V. Appointment op Receivers and^ other Pro- 
visional Remedied. 



CHAPTER ONE, 



ABREST AND BAIL, 



290. No person to be arrested ex- 
cept as prescribed. 

In what cases. 

Order of arrest ; from whom 
obtained. 

Order obtamed on a£Sdavlt, 
and to what actions appli- 
cable. 

Undertaking required before 
issuing order. 

Time when order ma/ issue, 
its form; time to answer or 
move to vacate. 

Sheriff to Imve order and 
affidavits, and copies to be 
delivered to defendant by 
sheriff on his arrest. 

Order, how executed. 

298. Defendant, how discharged. 

299. Undertaking of defendant; 

form of. 

800. Surrender of defendant. 

801. Bail may arrest defendant. 



291. 
292. 

293. 



294. 
29.5. 



296. 



297. 



Section. 

302. Bail to be proceeded against 
by action. 

Bail, how exonerated. 

Undertaking of bail to be 
delivered to cierk and no- 
tice thereof to plaintiff, 
and its acceptance or rejec- 
tion by him. 

Notice of justification ; new 
bail. 

Qualiffcations of baiL 

Justification of bail. 

If bail adjudged sufficient, 
examination to be certified, 
and sheriff exonerated. 

Defendant may make de- 
posit-instead of bail with 
sheriff. 

Sheriff within four days to 
pay deposit into court. 

Bail substituted for deposit 
and deposit refunded. 



303. 
B04. 



205. 

306. 
307. 



309. 



310. 
311. 



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clark"*s code of civil procedure. 143 



Bbctton. 

312. Plaintiff obtaining judg- 

ment, deposit applied to 
its pivyment. 

313. Sheriff liable as bail, when. 

314. Judgment against sheriff; 

action on his offteial bond. 

315. Bail Uable to sheriff. 

316. Defendant before judgment 

may apply on motion to 



Section. 

317. Motion to vacate made on 

afidavit^' plaintiff may op- 
pose the same by afAdayits 
or other proof. 

318. Defendant confined for want 

of bail, may give bail, and 
bond returned to next 
court. 

319. Bail to pay costs in certain 



vacata 4 cases. 

Bail not discharged by 



i 



I 



amendment of x>roces8. 



Sec* 290m Ko person to he arrested except as prescribed. C. 
C. P., 8. 148. 

No person shall be arrested in a civil action, except as 
prescribed by this chapter; but this provision shall not ap- 
ply to proceedings for eoutempt. 

Ancillary remedy. — Arrest and bail is an ancillary or provisional remedy, 
and pre-supposes an original remedy, in which the provisional remedy, may or ^1- 
roay not be applied for, Jarman v. Ward, 67 — 33. * ' -^ . / ^ 7, >-, ' ^ * v ^ 

Where there is no order of arrest before Jadgment.— Where there is no 
order of arrest before judgment, nor any complaint averring such facts as would 
have justified such order, a defendant can not be arrested after judgment under 
an execution against the person under the C. C. P., 258, (Code, 442, post.) 
Houston V. Walsh, 79 — 35. 

Sec. 291. In what crises. C C. P., s. 149. B. C, c. 31, 8. 
54, 1777. c. 118, 8. 6. 1869-^70, c. 79, s. 1. 

The defendant may be arrested, as hereinafter prescribed, 
in the following cases : 

(1). In an action for the recovery of damages, on a cause 
of action not arising out of contract, where the defendant is 
not a resident of the state, or is about to remove therefrom, 
or where the action is for an injury to person or character, 
or for injuring, or for wrongfully taking, detaining or con- 
verting property. 

Insnfftcient alRdarlts. — An affidavit that the defendant is '* about to leave 
the state " is insufficient to obtain an order of arrest, because :^ 

1. It does not set forth that it is with the intent to defraud his creditors; and ^ 

2. It does not state the ground of affiant's belief that the defendant js„about 
to commit the act apprehended; which is necessary to be done in order that the 
court may perceive that he has reasonable cause for such apprehension. Wil^ 
son V. Barnhill, 64-7-1 21. 

An affidavit alleging that the defendant ** is about to remove from the state 
of North Carolina, to become a resident of the state of Virginia,'* is insufficient 
if it does not state the reasons of the belief in regard to what i5.,about to occur, 
in order that the court may judge whether his apprehensions be reasonable or not. 
Wood V. Harrell, 74—338. 



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r44 CLARK'S CODE OF CIVIL PROCEDURE. 

When ffronnds of belief mOHt be stated.—Wnen the plain' iff. in his affi- 
davit to obtain an order of arrest, relies upon his apprehension of what the de- 
fendant is about to do, as '* remove from the stale," " secrete his property," &c.. 
he must state the grwmds on which he bases such apprehensive belief, in his 
affidavit; but when he relies on a fact already accomplished, it is sufficient, if 
such facts be stated in the wotds of the Code authorizing the arrest, as that the 
defendant '* has secreted his property with intent to defraud his creditors," &c. 
Hughes v. Person, 63 — 548. 

When canse of arrest is stated in tiie complaint.— The cause for arrest, 
when set forth in the complaint, must be stated with as much explicitness as 
when set forth in an affidavit. Peebles v. Foote, 83 — 102. 

Coustitational prohibition of imprisonment for debt. — The constitu- 
tional prohibition of imprisonment for debt does not protect from an arrest un- 
der this section in actions for tort. Moore v. Green, 73 — 394; Long v. McLean, 

88—3. 

Sednction of a daughter* — The seduction of a daughter is an injury to the 
person of the father^ within the meaning of this section, and a sufficient ground 
for arrest. Hoover v. Palmer, 80 — 313. 

See § 447, post^ and cases there cited. 

(2) In an action for a fine or penalty, or for seduction, or 
fv.r money received, or for property embezzled or fraudu- 
lently misapplied by a public oflBcer, or by an attorney, so- 
licitor or counsellor, or by an oflBcer or agent of a corpora- 
tion or banking association, in the course of his employ- 
ment as such, or by any factor, agent, broker or other per- 
son in a fiduciary capacity, or for any misconduct or neg- 
lect in oflBce, or in a professional employment. 

Administrator. — An administrator who has been fixed with assets, which 
are not forthcoming, is not thereby necessarily found guilty of fraud, so as to 
b \n^ subject him to arrest under this section. Melvin v. Melvin 72-#-384. 

* / The provision of this section, authorizing the arlest of the defendant *' in an 

, }. ' action on a promise to marry," is in violation of article I, section 16, of the 

' • " / constitution, which provides that " There shall be no impiisonment for debt, 

^ except in cases of frauds" "A breach of a promise to marry," says Pearson, C. J., 
*• is no more a ' case of fraud * than a breach of any other promise. The pur- 
pose in McNeely v. Haynes, 76—122, was to restrain that decision to the case 
in hand, as we do this, so as to let the other sub-sections stand on their own 
construction, except so far as these two cases may furnish analogies." Moore. 
V. Mullen, 77 — 327. 

Quare, whether in a case of breach of promise of marriaj*e, accompanied 
with seduction, and an attempt to flee the state, the element of fraud would 
justify the defendant's arrest ? Ibid. 

Note. — The words "on a promise to marry " (on which Moore v. Mullen, 
ante, was decided) have since been stricken out of this sub-section. 

(3) In an action to recover the possession of personal 
property, unjustly detained, where the property or any part 
thereof has been conceal eH^removed or disposed of, so that 
it cannot be found or taken by the sherifl^, and with the in- 
tent that it should not be so found or taken, or with the in- 
tent to deprive the plaintiff of the benefit thereof; 



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CLARK*S CODE OF CIVIL PROCEDURE. 145 

(4). When the defendant, has been guilty of a fraud in 
contracting tlie debt, or incurring the obligation for which 
the action is brought, or in concealing or disposing of the 
property for the taking, detention or conversion of which 
the action is brought, or when the action is brought to re- 
cover damages for fraud or deceit. 

Affidavit snfflclent. — Where the plaintiff alleged in his affidavit that the de- 
fendant had sold him a patent right, representing it to be genuine and no in- 
fringement on any other patent, which was false, and that the defendant was a 
non-resident, the order was properly issued. Bahnson v. Cheseboro, 77 — 325. 

Fraud of one partaen — The fact that one partner has obtained goods for 
the firm by false repiesentations does not make the other partner liable to ar- 
rest therefor, unless he is shown to be guilty of the fraud, and an affidavit 
charging one partner with such fraud will not justify the arrest of the other. 
McNeely v. Haynes, 76—122. 

(5). When the defendant has removed or disposed of his 
property, or is about to do so, with intent to defraud his 
creditors. 

Information and belief. — An affidavit, alleging the debt and fraud in con- 
tracting, and "upon information and belief," a concealment of property by the 
defendant is good. Paige v. Price, 78 — 10; Peebles v. Foote, 83 — 102. 

See Cowles v. Hardin, 79 — 517. 

Statement of reasons for belief. — An affidavit, stating that *' the defend- 
ant has disposed of his property with intent to defraud his creditors,*' is good 
if it slops there. When, however, it proceeds to give a reason for that belief, 
the reason must, be sufficient or the affidavit will not suffice. So when it adds : 
'* In this, that although he has received from the plaintiffs alone over $7,000" 
in specie and $7,600 in currency, and owes upward of $3,000, he has not paid 
any of his debts," is insufficient to justify the arrest of the defendant. Smith 
V. Gibson, 74 — 684. 

But no woman shall be arrested in any action, except for 
a wilful injury to person, character or property ; and no 
person shall be arrested on Sunday. 

The arrest of the defendant is illegal if made on Sunday. Devries v. Sum- 
mit, 86 — 126. 

Sec, 292. Order of arrest ; from whom obtained. C. C. JP., 
«• 150. 

An order for the arrest of the defendant must be ob- 
tained from the court in which the action is brought, or 
from a judge thereof. 

Bj whom order granted. — The order of arrest must proceed from the court 
in which the action is brought or from a judge thereof. Houston v. Walsh, 
79—35. 

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146 CLARK'S CODE OF CIVIL PROCEDURE. 

If affidavit insofficieut^ order not void* — An order of arrest granted by a 
court having jurisdiction is not void, though it may be erroneous, if issued on 
an ins'ufiicienr aflfidavlt7~ Tucker v. Davis, 77 — 330. 

Bogalar and irregular process. — Regular process is a justification of a 
taking made under it, when it issues from a court of competent jurisdiction, 
but not for any conversion of the property. Woody v. Jordan, 6g — 189. 

Irregular process, after it h.is been set aside, is no justification to the plain- 
tiff, his agents or attornies. Ibid. 

Sec. 29S, Order obtainefl an affidavit, and to what action» 
applicable. C. C. P., 8. 151, 1869''70, c. 79, s. 1. 

The order may be made where it shall appear to the 
court or judge thereof, by the aflBdavit of the plaintifiF. or of . 
any other person^hat a sumliieirtMjaujjfe/ of action exists, ' 
/ **^*^ w.u^ '/ah3'lhat the case is one of those provided for in in this sub- 
chapter. 

Sufficient affidavit* — Where the plaintiff 's affidavit alleges the existence of 

. _5.WUse of action and the fraud committed by defendant in contracting the debt, 

and that upon information and belief the defendant hasjraudulenlly removed 

and disposed of his property, it justifies issuing an order ol arrest. FaTge'v. 

Price, 78 — 10; Peebles v. Foote, 83 — 102. 

An affidavit by the plaintiff, alleging that the defendant had sold him a cer- 
tain patent right, representing the same to be genuine and no infringement 
upon any prior patent, which representations were false and intended to de- 
ceive the plaintiff, who had been damaged the amount of the purchase money 
paid the defendant, and that the defendant is a non-resident, justifies issuing a 
warrant of arrest. Bahnson v. Cheseboro, 77 — 325. 

Insufficient cause. — Breach of a promise to marry is not a "case of fraud " 
and does not justify an order of arrest. Moore v. Mullen, 77 — 327. 

Where one partner in a firm obtains credit by false representations the other 
partner is not liable to arrest. McNeely v. Haynes, 76-— 122. 

Insufficient affidarit.— An affidavit that does not set forth how the funds 
in the hands of an administrator have been misapplied is not sufficient to 
justify holding him to bail. Melvin v. Melvin, 72 — 384. 

• Additional affidavit. — Leave to amend an affidavit by filing an additional 
one is a matter of discretion, but after the defendant has been been discharged 
for defect in the affidavit, the plaintiff may at once apply for another order upon 
a new affidavit. Wilson v. Barnhill, 64 — 121. 

Where the affidavit on which the order (of attachment) issued is defective, 
and the defendant moves to dismiss on counter-affidavits, to which the plain- 
tiff replies with one which is sufficient, the second affidavit cures the defects of 
the first. Clark v. Clark, 64 — 150. 

Validity of order of arrest, how determined.— X]i&^vajjdityj)f an order 
of arrest and warrant of attachment is determined upon facts alleged in the 
_. original affidiivit and existing when the proceeding is instituted, not upon new 
matter which mayTlave ariervrarck tran*ptrcd. Be f t its v. ' fT unimit, 86 — 126. 

It(*S adjudicata, — A motion to discharge the defendant from custody is 

,' eqiiivalent to a motion to vacate the order of arrest, and can only be made be- 

- \-> * foTeinagment. If such a motion is made and refused it can not be made again, 

because it is res adjudicata. The remedy is by an appeal from the first refusal 

of the motion. Roulhac v. Brown, 87 — I. 

Affidavit insufficient, order of arrest not void. — An order of arrest 

granted by a court having jurisdiction is not void. It may be erroneous if 
issued upon an insufficient affidavit. Tucker v. Davis, 77 — 330. 



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CLARK'S CODE OF CIVIL PROCEDURE. I47 

Constitutional prohibition of impriiionment for debt.— The constitu- 
tional prohibition against imprisonment for debt does not protect from arrest in 
actions for tort. Moore v. Green, 73—394; Long v. McLean, 88 — 3. 

AfHdHTit before non-reaident notary. —A non-resident notary public has 
no authority to take an affidavit to be used in the courts of this state to obtain 
an order of arrest. Benedict v. Kail, 76 — 113. 

$€€ cases cited under g 291, ante. 

Sec* 294, Undertaking required before issuing order, C. 
C. JP., s. 152, 18b8''9, c. 277, s. 7. 

Before makiug the order the court or judge shall require 
a written undertaking on the part of the plaintiff, with suf- 
ficient surety, payable to the defendant, to the effect that if 
the defendant recover judgment the plaintiff will pay all 
damages which he may sustain by reason of the arrest, not 
exceeding the sum specified in the undertaking, which shall 
be at least one hundred dollars. 

One suing as a pauper can not have an order of arrest without giving this 
undertaking. Rowark v. Homesly, 68—91. 

Sec. 295. Time when order tnay issue., its form; time to 
answer or move to vacate. C. C. P., s. 153. 

The order may be made to accompany the summons, or 
to issue at any time afterwards, before judgment. It shall 
require the sheriff of the county where the defendant may 
be found, forthwith to arrest him and hold him to bail in a 
specific sum, and to return the order, at a place and time 
therein mentioned, to the clerk of the court in which the 
action is brought, and notice of such return shall be served 
on the plaintiff or his attorney as prescribed in chapter ten 
for the service of other potice. . 

But said order of arrest shall be of no avail, and shall be 
vacated or set aside on motion, unless the same is served 
upon the defendant, as provided by law, before the docket- 
ing of any judgment in the action; and the defendant shall 
have twenty days after the service of the order of arrest, in 
which to move to vacate the order of arrest, or to produce 
the amount of bail. 

The order can not issue after final judgment rendered. Houston v. Walsh, 
79-38. > 

Unless issued twenty days before judgment docketed, it will, on motion, be ' 
vacated. Ibid. J 



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148 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 296, Sheriff to fiave order and affidavits^ and copies 
to be delivered to defendant by slieriff on his arrest. C* C 
r., s. 154. 

The aflSdavit and order of arrest shall be delivered to the 
sheriff, who, upon arresting the defendant, shall deliver 
him a copy thereof. 

Sec. 297* Order, how executed. C C. JR., s. 155. 

The sheriff shall execute the order by arresting the de- 
fendant and keeping him in custody until discharged by 
law; and may call the power of the county to his aid in 
the execution of the arrest. 

The service of the writ and arrest of the defendant on Sunday is unlawful. 
Devries v. Summit, 86 — 126. 

Sec. 298. Defendant, how discharged. C, C. P., s. 156. 

The defendant, at any time before execution, shall be 
discharged from the arrest, either upon giving bail or upon 
depositing the amount mentioned in the order of arrest, as 
provided in this chapter. 

The motion to vacate the order of arrest must be made before judgment. 
Roulhacv. Brown, 87 — i. 

Such motion, if made and refused, can not be renewed. The matter is res 
adjudicata. Ibid. 

Sec. 299. Undertaking of defendant ; form of. C. C. P., 8. 
157. 

The defendant may give bail by causing a written un- 
dertaking, payable to the plaintiff, to be executed by suffi- 
cient surety to the effect that the defendant shall at all times 
render himself amenable to the process of the court, during 
the pendency of the action, and to such as may be issued 
to enforce the judgment therein, or if he be arrested for the 
cause mentioned in the third sub-division of section two 
hundred and ninety one, an undertaking to the same effect 
as that provided by section three hundred and twenty-six. 

See cases cited under § §302, 303 and 333, post. 
Sec. 300. Surrender of defendant. C C. P^, s. 158. 

At any time before final judgment against them, the bail 
may surrender the defendant in their exoneration, or he 



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CLARK^S CODE OF CIVIL PROCEDURE. 1 49 

may surrender himself to the sheriflFof the couuty where he 
was Arrested in th€ following manner: 

(1) A certified copy of the undertaking of the bail shall 
be delivered to the sheriff, who shall detain the defendant 
in his custody thereon, as upon an order of arrest, and shall, 
by a certificate in writing, acknowledge the surrender. 

{2) Upon the production of a copy of the undertaking atid 
sheriff's certificate, the court, or a judge thereof, may, upon 
a notice to the plaintiff of ten days, with a copy of the cer- 
tificate, order that the bail be exonerated, and on filing the 
order and papers used on said application, they shall be ex* 
onerated accordingly. But this section shall not apply to 
an arrest for cause mentioned in sub-division three of sec- 
tion two hundred and uinety-onoi so as to discharge the 
bail from an undertaking given to the effect provided by 
section three hundred and twenty-six. 

Sec. 30 J^ Bail may arrest defendant. C* C. P., «• 159. 

For the purpose of surrendering the defendant, the bail, 
at any time or place, before they are finally charged, may 
themselves arrest him, or by a written authority, indorsed 
oi. a certified copy of the undertaking, may empower any 
person over twenty-one years of age to do so. 

I'he bail, for the purpose of surrendering the defendant, is empowered at 
any time before he is finally charged, to arrest him, or empower any other 
suitable person to arrest the defendant anywhere. Sedberry v. Carver, 77 — 319* 



See. 302. Bail to be proceeded against by m otion. C C P.^ 
8.160. 

In case of failure to comply with the undertaking, the 
bail may be proceeded against by motion in the cause on 
ten days' notice to such bail. 

Baily how proceeded againgt* — Previous to the enactment of the Code, 
the plaintiff in a suit had no remedy on a bail bond except a scire facias in the 
original cause. Carlelon v. Sloan, 64^-702. 

A writ of jrzr^yiw/W to subject bail was an original proceeding, under the 
former practice, for which the Code substitutes the civil action. McDowell v. 
Asbury, 66 — ^444. 

The bail may be proceeded against by motion Ins. Co. v. Davis, 74 — 78. 

Note. — This section at that time provided that the bail could be proceeded 
against "by action only." It has been amended since to Conform to the de« 
cision, and the remedy is by motion. 



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Sec^ 303 w Bail, how exonerated^ C. C P., «. 101^ 

The bail may be exonerated, either by the death of the 
defendant, or his imprisonment in a state prison, or by his 
legal discharge from the obligation to render himself ame- 
nable to the process, or by his surrender U> the sheriff of the 
county where he was arrested, in execution thereof, at any 
time before final judgment against the bail. 

State prison* — The term "state prison," as used in this section, applies 
either to the penitentiary or the county jnil. Sedbery v. Carver, 77 — 319. 

ImpriBOnment before judgrment.— The bail is not exonerated by the fact 
ihat the pf incipal is imprisoned for a crime, when the term of impiisonment ha& 
expired before the judgment against the bail. The statute does not mean that 
the bail shall be exonerated because the principal shall have been put in prison, 
but \^ he shall be in prison when the bail may be called upon to surrender him. 
Adrian v. Scanlin, 77 — 317. 

Where the imprisonment of the defendant, in another proceeding, expires 
before judgment is obtained, either against the principal in the original action 
or agdinst the bail upon his undertaking, the bail is not exonerated by such im- 
prisonment. Sedberry v. Carver, 77 — 319. 

Sec, 304* Undertaking of bail to be delivered to cierk and 
notice thereof to plaintiff, and its acceptance or rejection 
bj/him. C. C. P., s. 162. 

Within the time limited for that purpose, the sheriff shall 
deliver the order of arrest to the clerk of the court in which 
the suit is brought, with his return indorsed, and a certified 
copy of the undertaking of the bail, and notify tbe plaintiff 
or his attorney thereof. The plaintiff, within ten days 
thereafter, may serve upon the sheriff a notice that he does 
not accept the bail, or he shall be deemed to have accepted 
it, and the sheriff shall be exonerated from the liability. 

Sec. 305. Notice ofjugtifieation ; new bail. C. C. P., 8. 163. 

On the receipt of such notice, the sheriff or defendant 
may, within ten days thereafter, give to the plaintiff, or his 
attorney, notice of tbe justification of the same Or other bail 
(specifying the places of residence and occupation of the lat- 
ter) before the court, justice of the peace or judge, at a spec- 
ified time and place, the time to be not less than five nor 
more than ten days thereafter. In case other bail be given, 
there shall be a new undertaking, in the form prescribed in 
section two hundred and ninety-nine. 



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CLARK'S CODE OF CIVIL PROCEDURE. I5I 

Sec. 300. Qualifications ofbaii. C. C. -P., 8. 164. 

The qualifications of bail must be as follows: 
(1). Each of them must be a resideot and freeholder 
within the state; 

(2). They must each be worth the amount specified in the 
order of arrest, exclusive of property exempt from execu- 
tion; hut the judge, on justification, may allow more than 
two bail to justify severally in amounts less than that ex* 
pressed in the order, if the whole justification be equivalent 
to that of two sufficient bail. 

Sec. 307. Jusfificatiofi ofbaH. t\ C. P., «. 1H5. 

For the purpose of justification, each of the bail shall' at' 
tend before the court, or judge, or justice of the peace, at the 
time and place mentioned in the notice, and may be ex- 
amined on oath, on the part of the plaintiff, touching his 
sufficiency, in such a manner as the court, the justice of the 
peace, or the judge, in his discretion, may think proper. 
The examination shall be reduced to writing, and sub- 
scribed by the bail, if required by the plaintiff. 

Sec. 308, If bail adjudgal sufficient, exatnination to be 
certifietlf and sheriff exonercUed. €. C. 1\, 8. 166. 

If the court, justice of the peace or judge find the bail 
sufficient, he shall annex the examination to the under- 
taking, indorse his allowance thereon, and cause them to be 
filed with the clerk ; and the clerk shall thereupon be exon- 
erated from liability. 

Sec. 309. defendant may make deposit instead of bail 
with sfieriff'. C. C. P., s. 167. 

The defendant may, at the time of his arrest, instead of 
giving bail, deposit with the sheriff the amount mentioned 
in the order. The sheriff shall thereupon give the defend* 
ant a certificate of tlie deposit, and the defendant shall be 
discharged from custody. 

Sec. 310. Sheriff' within four tlnys to pay deposit into court. 
C. C. r., s. 168. 

The sheriff shall, within four days after the deposit, pay 

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rS^ CLARK'S CODE OF CIVi;. PROCEDURE. 

the same into courts and &lia)l take fpom the officer receiv- 
ing the same two certificates of such payment, the one of 
which he shall deliver to the plaintiflf, and the other to the^ 
defendant. For any default in making such payment, the 
same proceedings may be had on the official bond of the 
sheriff, to c(»llect the sum deposited, as in other cases of de- 
linquencies. 

Sec0 Sll . B0il mibgiituted for depovif and depotHf refundedm 

c. c. r.f s. 109. 

If money be deposited, as provided in the two proceeding 
sections, bail may be given and justified upon notice, aa 
prescribed in section three hundred and seven, any time 
before judgment ; and thereupon the judge, court or justice 
of the peace shall direct, in the order of allowance, that the 
money deposited be refunded by the sheriff or other officer 
to the defendant, and it shall be refunded accordingly. 

Sec, 312. JPlaintiff obtaining Judgment, deposit applied to 
its payment, C, CJP,, s, 170, 

When money shall have been j?o deposited, if it remain ur> 
deposit at the time of an order or judgment for the payment 
of money to the plaintiff, the clerk or other officer shall, un- 
der the direction of the court, apply the same in satisfaction 
thereof, and after satisfying the judgment, shall refund the 
surplus, if any, to the defendant. If the judgment be io 
favor of the defendant, the clerk or other officer shall re- 
fund to him the whole sum deposited and remaining unap- 
plied. 

Sec. 313. Sheriff liable as bail, when. C.C. JP., s. 171. 

If, after being arrested, the defendant escape, or be res- 
cued, or bail be not given or justi6ed, or a deposit be noi 
made instead thereof, the sheriff shall himself be liable as 
bail. But he may discharge himself from such liability, 
by the giving and justification of bail at any time before 
process against the person of the defendant, to enforce an 
order or judgment in the action. 



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CLARK'S CODE OF CIVIL PROCEDURE. 1 53 

Sec, 314. Judgment against sheriff; action on his offldai 
bond. C. C. P,f s. 172. 

If a judgment be recovered against the sheriff, upon his 
liability as bail, and an execution thereon be returned un- 
satisfied, in whole or in part, the same proceedings may be 
had on the official bond of the sheriff, to collect the defi- 
ciency, as in other cases of delinquency. 

Sec. 315. Bail liable to sheriff. C. €. P., s. 173. 

r 

The bail taken upon the arrest shall, unless they justify, 
or other bail be given or justified, be liable to the sheriff by 
action, for damages which he may sustain by reason of such 
omission. 

Sec. 310. Defendant before Judgment may apply on mo- 
tion to vacate. C. C. P., s. 174. 

A defendant arrested may at anytime before judgment 
apply, on motion, to vacate the order of arrest, or to reduce 
the amount of bail. 

Motion must be made before Jad|rnieilt. — A motion to discharge the de- 
fendant from custody is in effect a motion to vacate an order of arrest and can 
only be made before judgment. Roulhac v. Brown, 87 — i. 

Motion^ if denied; can not be renewed. — If a motion to dischai^e is 
made under this section and refused, the defendant is barred from renewing the 
motion or moving to vacate the order of arrest. It is res adjudicata, Roulhac 
V. Brown, 87 — I. 

Jndgre can racate any order, when.~A judge of the superior court has 
the power to vacate or modify orders made in a cause at any time before final 
judgment. Webb v, Kinsland, 8g — . 

Order raeated withont bond by defendant, when.— A provisional rem- 
edy will always be vacated, without requiring any undertaking by the defendant, 
if it appear to the court, on its face, to have been issued i rregularl y, or for an 
iusufficient cause. Bear v. Cohen, 65 — 511. 

When an order of arrest has been granted without an undertaking having 
been filed as required by J 294, antCy it will be vacated on motion, though the 
plaintiff may be suing as a pauper. Rowark v. Homesley, 68 — 91. 

Sec. 317. Motion to rotate made on affidavit; plaintiff . 
may oppose the satne by affidavits or other proof ^ C. C« 
P., s. 175. 

If the motion be made upon affidavits on the part of the 
defendant, but not otherwise, the plaintiff may oppose the 
same by affidavits, or other proof, in addition to those on 
which the order of arrest was made. 

Amendment of aflBdarit. — Refusal to allow an amended affidavit to be 

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154 CLARK S CODE OF CIVIL PROCEDURE. 

filed, when the defendant does not move on affidavit, is a matter of discretion, 
which the court will not review. — Wilson v. Bamhill, 64 — I2i. 

Additional affldarits* — When an order of arrest has been issued upon an 
insufficient affidavit, and the defendant instead of moving to dismiss on the 
ground of its apparent insufficiency files a counter affidavit, the plaintiff may 
file other affidavits, which, if sufficient, shall operate to cure the defects of the 
original. Clark v. Clark, 64 — 150. 

Validity of order of arrest, how determined.— The Talidity of an order 
of arrest and warrant of attachment is determined upon facts alleged in the 
original affidavit and existinjg at the time when the proceeding w as instituted, 
not upon new matter which may have afterwards transpired.' DevnCS v. Sum- 
mit, 86—126. 

Sec, 318. I>€fendant confined for want of bail, n^dy give 
bail, and bond returned to next court. M. C», c. 11, 8. 8. 
C. a P., s. 175 (a). 

If any person for want of bail shall be lawfully commit- 
ted to jail, at any time before final judgment, the sheriff, or 
other officer having him in custody, may take bail and dis- 
charge him ; and the bail-bond shall be regarded, in every 
respect, as other bail-bonds, and shall be returned and sued 
on in like manner; and the officer taking it shall make special 
return thereof, with the bond at the first court which is 
held after it is taken. 

Sec* 319, Bail to pay costs in certain cases. M. C, c. 11, s* 
10. C. C. P., 8. 175 {b). 

Whenever a notice shall issue against any person, as the 
bail of any other person, and the bail, at or before the term 
of the court at which such bail is bound to appear, or ought 
to plead, shall not be discharged from bis liability as bail 
by the death or surrender of his principal or otherwise; in 
that case the bail shall be liable for all costs which may ac- 
crue on said notice, notwithstanding the bail may be after- 
wards discharged, by the death or surrender of the princi- 
pal, or otherwise. 

The bail are not bound for the costs of an improper and ineffectual appeal. 
Clark V. Latham, 8 Jones, i. 

Sec. 320. Bail not discharged by amendment of process. 
B. C., c. 11, sec. 11. C. C. P., s. 175 (c). 

No amendment of process shall discharge the bail of the 
party arrested thereon, unless the amendment be to enlarge 
the sum demanded beyond the sum expressed in the bail- 
bond. 



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CLARK'S CODE OF CIVIL PROCEDURE. 



155 



CHAPTER TWO. 
CLAIM AND DEUVERT OF PERSONAL PROPERTY. 



Section. 

321. Delivery to be claimed at the 

time of issuing the sum- 
mons. 

322. Affidavit and requisites. 

323. Fiat of clerk to sheriff to de- 

liver property. 

324. Undertaking of plaintiff for 

delivery of property. 

325. Exceptions to undertaking. 

326. Undertaking of defendant 

to retain property. 

327. Justification of defendant's 

sureties. 

328. Qualification and Justifica- 



Section. 

tion of defendant's sure- 
ties, how. 

329. Property concealed in build- 

ings, how taken. 

330. Property when taken, how 
kept. 

331. Property taken, claimed by 

a third person. 

332. Sheriff not bound to keep 

the property, but may de- 
liver to claimant. 

333. Undertaking and affidavit, 

when and where to be filed. 



V. RH 



Sec^ 321, Delivery to be claimed at the time of ismUng the 
8umm,ons. C C P., s. 170. 

The plaintiff, in an action to recover the possession of 
personal property, may, at the time of issuing the summons, 
or at any time before answer, claim the immediate delivery 
of such property, as provided in this sub-ehapter. 

Satnmons innst issae* — The or4er can only be granted simultaneously with, 
or after the issue of supimons commencing an action between the parties. 
Hirsh V. Whitehead, 65 — 516. 

The issue of a summons is necessary, in order to give the clerk jurisdiction 
to issue the order. Potter v. Mardre, 74-— 36. 

If the plaintiff is content to let the property remain in the hands of the ^t- 
ltr\d\x\Xy pending the action^ he is not required to make the affidavit. It is then, 
in effect, the old action of detinue ^ and the judgment is that set out in § 431, 
'* for the possession or for the value, in case delivery can not be had, and dam- 
ages for the detention," &c. Jarman v. Ward, 67 — 32. 

If plaintiff give the bond this proceeding is a substitute for the old action of 
replevin; if he does not give the bond, it is a substitute for detinue or trover. 
Hopper V. Miller, 76 — 402. 

Fraadalent sale. — On a sale of goods, induced by fraud on the part of the 
vendee, claim and delivery lies for the recovery of the property by tne vendor. 
Wilson V. White, 80—280. 

Conditional sale* — Where a cow is sent to a person upon his agreement to 
pay for her in services, but before they are rendered he dies, an action for claim 
and delivery will not lie to recover the cow. McCraw v. Gilmer, 83 — 162. 

Where defendant is not in possession.—Action does not lie, if the de- 
fendant is not in possession of the property when suit brought. Haughton v. 
Newberry, 69 — 456. 

Claim and delivery is not maintainable against one wbo has neither posses- 
sion nor control of the property sought to be recovered, but who has sold and 
delivered it to another party before suit brought. Webb v. Taylor, 80—305. 



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156 CLARK'S CODE OF CIVIL PROCEDURE. 

Where a delirerj can not be had. — When the property can not be re- 
delivered in specie^ the value thereof, upon recoverv, should be assessed as of 
the time of trial, and not as of the time of seizure by the sheriff. Holmes v. 
Godwin, 69 — 467. 

In an action for claim and delivery of a horse, which died in defendant's pos- 
session after action brought, the plaintiff can not recover anything except for 
the hire of the horse, and only then if the death was caused by the negligence 
of the defendant. Williamson v. Buck, 80 — 308. 

Where a delivery is not had, the suit can still be prosecuted for the recovery 
of the value of the property in damages. Miller v. Hahn, 84 — 226. 

Interest. — Interest is not allowed, as a matter of law, in claim and delivery, 
but the jury can, in their discretion, allow as damages interest on the value of 
th« property from the lime it was taken. Patapsco v. Magee, 86 — 350. 

Landlord and tenant* — Where the lessor by his own acts gets possession of 
the crop, the remedy of the lessee is by claim and delivery to recover his part 
therof. Wilson v. Respass, 86—112. 

Where a lessee sues the lessor in claim and delivery for his part of the crop, 
and the lessor is solvent, an injunction to restrain such lessor from selling the 
crop will not be granted. Ibid. 

The landlord may bring an action of claim and delivery to recover posses- 
sion of crops raised by the tenant or cropper, where his right of possession un- 
der the Code, sec. 1754, is denied ; or he may resort to any other appropriate 
remedy to enforce his lien for the rent and advances made. The action will 
lie, not only in case of a removal of the crops from the land leased, but also 
where the tenant or cropper or any other person takes the crops into his abso- 
lute possession and denies the right of the landlord thereto. Livingston v. Par- 
ish, 89 — , 

Unfathered crops. — Claim and delivery can be brought for a certain num- 
ber of ]>ounds of cotton, though it is ungathered in the field, and the officer 
can employ hands and have the requisite number of pounds picked out. Pa- 
tapsco V. McGee, 86 — 350. 

Between tenants in common. — An action of claim and delivery by one 
tenant in common against another, to recover possession of personal property, 
cannot be maintained. Powell v. Hill, 64 — 169. Unless the property has 
been destroyed or carried beyond the limits of the slate. Strauss v. Crawford, 
89^. 

Plaintiff pat in possession. — When plaintiff is put in possession by proj:ess 
under this chapter, he can not move to dismiss and cut defendant off from his 
defence. Manix v. Howard, 82 — 125. 

Dismissed for irregrnlarity. — Where the proceeding is dismissed for irreg- 
ularity, the title to the property can not be brought in question on an inquisi- 
tion of damages against the plaintiff. Manix v. Howard, 79 — 553. 

Demurrer does not admit a lien. — Where the answer, in an action for 
claim and delivery, alleges a lien on the property, a demurrer to the answer 
does not admit the lien. Mauney v. Ingram, 78—96. 

Usury a defence. — Usury can be pleaded in defence to this proceeding, 
where the claim and delivery is for articles conveyed by mortgage. Moore v. 
Woodard, 83 — 531. 

Rigpht ( *» interrene. — In an action of claim and delivery a third party claim- 
ing such property loses his right to be made a party to the suit after the lapse 
of three years, without applying to be made a parly Quaie^ whether an ap- 
peal lies in favor of the claimant from the refusal of the application by the 
judge. Clemmons v. Hampton, 70 — 534. 

^ee § ^^i, post. 

Plaintiff may elect (0 bring' trorer. — An owner of property, deprived of 

* possession, who regains the same, may, in an action brought against him, and 

as full defence thereto, show his title to the property, notwithstanding that, in 



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CLARK'S CODE OF CIVIL PROCEDURE. 1 57 

the recaption, he may have committed an act calculated to produce a breach of 
the peace. A plaintiff claiming such property is not restricted to ** claim and . - 
delivery." but Inay bring an action in tne nature of trover. Alsbrook v. Shields, 
67—333. 

Agtdnsi a sheriffi — A sheriff is liable in an action of claim and delivery for 
property seized for taxes after the expiration of the time limited by law for their 
collection. Ray v. Horton, 77 — 334. 

An action of claim and delivery of personal property can be maintained by 
the owner against an officer taking the same under an execution against a third 
person. Jones v. Wird 77 — 337; Churchill v. Lee, 77—341. 

Effect of Jadgment* — A judgment in action of claim and delivery will not 
bar a subsequent action between the same parties, seeking to recover damages 
for the taking and conversion of such property. Woody v. Jordan, 69 — 189. 

See. 322. AffldavU and requisites. C. C. P.fS. 177. 1881, 
c. 134. 

Where a delivery is claimed, an affidavit must be made, 
before the clerk of the court io which the action is required 
to be tried, or before some person competent to administer 
oaths, by the plaintiff, or some one in his behalf, showing : 

It is only in cases where the plaintiff seeks to have the property delivered to 
him instanter, and to have the possession pending the action, as in the old ac- 
tion of repleznn, that the affidavit is required. Jarman v. Ward, 67 — 32, 

The affidavit must conform strictly to all the requirements of the statute. 
Hirsh V. Whitehead, 65 — 516. 

(1). That the plaintiff is the owner of the property claimed 
(particularly describing it), or is lawfully, entitled to the 
possession thereof by virtue of a special property therein, 
the facts in respect to which shall be set forth ; 

Bailee* — Qne in the rightful possession of property as a bailee, is entitled to 
an order against a wrong-doer who has deprived him of possession. Hopper v. 
Miller, 76— -402. 

Property miut be capable of identiflcation.— When a party has ex- ] 
pended labor on another's property, so as to change its specific character, as l 
distilling corn into whiskey, the owner of the original article can not have an I 
order to seize the product. Potter v. Madre, 74 — 36. \ 

In an action to recover personal property, whether the provisional remedy is v^ . 
resorted to or not. the plamtiff must show a right to the possession of specific 
property which may be identified. A mortgage of ** ten new buggies " by one 
who has a larger number of new buggies in his possession, without other descrip- 
tion, does not convey title to any particular ones nor create a right on which 
an action for possession may be maintained. Blakeley v. Patrick, 67 — 40. 

(2) That the property is wrongfully detained by the de- 
fendant ; 

The provisional remedy of claim and delivery is not maintainable against one 
who has neither possession nor control of property, but has sold it to another. ^ » 

Webb V. Taylor. 60 — 305; Haughton v. Newberry, 6g — 456. ^\ (^ 

Where a mortgage has been made on a crop sown, but not yet growing, claim /^ 1 

anddelivery lies in favor of the mortgagee for the crop when matured. Gotten 
V. Willoughby, 83 — 75. 



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(3) The allejred cause of the detention thereof, according 
to his best knowledge, information and belief; 

(4) That the same has not been taken for tax, assessment, 
or fine, pursuant to a statute : or seized under an execution 
or attachment against the property of the plaintiff; or, if so 
seized, that it is, by statute, exempt from such seizure; and, 

Execution* — An affidavit which fails to state that the property has not been 
taken under execution, or to give its value, is fatally defective. Hirsh v. White- 
head, 65 — 516. 

A party other than the judgment debtor may recover property held by a sher- 
iff under levy, and have delivery thereof under this chapter. Jones v. Ward, 
77 — 337; Churchill v. Lee, 77 — 341. 

Taxes.— Claim and delivery lies for property seized by a sheriff for taxes 
after the expiration of the time limited by law for their collection. Ray v. Hor- 
ton, 77—234. 

Exemption* — The claim to a personal property exemption may be tried un 
der this chapter. Baxter v. Baxter, 77 — 118. 

(5). The actual value of the property. 

The affidavit in claim and delivery must slate the actual value of the property. 
Hirsh v. Whitehead. 65—516. 

Sec, 323, Fiat of clerk to sheriff, to deliver property, C, 
€. r., s. 178. 

The clerk of the court shall, thereupon, by an indorse- 
ment in writing upon the aflSdavit, require the sheriff of 
the county where the property claimed may be, to take the 
sapie from the defendant and deliver it to the plaintiff: 
Provided, the plaintiff shall give the undertaking prescribed 
in the succeeding section. 

Application for order optional* — In an action for personal property, the 
plaintiff need not apply for tne provisional remedy unless he sees fit, and in such 
case his remedy is as in the old action of detinue. Jarman v. Ward, 67 — 32. 

All requisites must be complied with. — To entitle a party to maintain an 
action for daim and delivery of 'personal property, there must be a compliance 
with all the requisites of this sub-chapter. Hirsh v. Whitdiead, 6^ — 516. 

Issued before sammons. — An order granted before issue of summons is no 
justification to the sheriff or party obtaining it, for any action done under it. 
Potter V. Mardre, 74—36. 

Irregrolar process* — A process which is set aside for irregularity, is no justi- 
fication to the plaintiff or nis attorneys and aiders, for acts done under it. 
Woody V. Jordan, 69 — 189. 

Agrainst one tenant in common.— When the sheriff seizes goods nnder this 
chapter, whidi belong to several parties in common, he becomes, pro hoc vice, a 
tenant in common with the other joint owners, and it is well settled that a tenant 
in common in personalty can not maintain an action to recover goods from his 
co-tenant. Ins. Co. v. Davis, 68 — 17. 



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Amendment .of order* — Such requisition can be amended, but not after third 
parties have acquired rights which may be prejudiced by the amendment. Phil- 
lips \, Holland, 78—31. 

Issoed bj deputy clerk.— The deputy of the clerk of the superior court is 
authorized to take the affidavit of the plaintiff and to order the seizure of per- 
sonal property in an action for claim and delivery; Jackson v. Buchanan, 89 — . 

Sec. 324. Undertaking of plaintiff for delivery of property. 

c. a p., s. 179. 

Upon the receipt of the order from the clerk, with a writ- 
ten undertaking, payable to the defendant, executed by one ^> ^ ^ 
or more suflScient sureties, approved by the sheriflF, to the '^ 
effect they are bound in double the value of the property, T, f C 
as stated in the aflBdavit for the prosecution of the action, 
for the return of the property to the defendant, if return 
thereof be adjudged, and for the payment to him of such 
sum as may, for any cause, be recovered against the plain- 
tiff, the sheriff shall forthwith take the property described 
in the affidavit, if it be in the possession of the defendant 
or his agent, and retain it in his custody. He shall also, 
without delay, serve on the defendant a copy of the affida- 
vit, notice and undertaking, by delivering the same to him 
personally, if he can be found, or to his agent, from whose 
possession the property is taken ; or, if neither can be found, 
by leaving them at the usual place of abode of either, with 
some persora of suitable age and discretion. 

The plaintiff can bring suit and not give bond, as required by this section, 
if he does not ask for possession of property before judgment. Jarman y. 
Ward, 67—32. 

Sec. 325. Exceptions to undertaking. ۥ C. B., s, 180. 

The defendant may, within three days after the service 
of a copy of the affidavit and undertaking, give notice to 
the sheriff personally, or by leaving a copy at his office in 
the county town of the county, or if he have no such office, 
at the office of the clerk of the' court, that he excepts to the 
sufficiency of the sureties. If he fail to do so, he shall be 
deemed to have waived all objection to them. When the 
defendant excepts, the sureties shall justify on notice, in 
like manner as upon bail on arrest. And the sheriff shall 



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be responsible for the sufficiency of the sureties, until the 
objection to them is either waived as above provided, or 
until they shall justify, or until new sureties shall be sub- 
stituted and justify. If the defendant except to the sure- 
ties he cannot reclaim the property as provided in the suc- 
ceeding. section. 

Sec, 326, Undertaking of defendant to tetain property. 
C. C. r., 8. 181. 

At any time before the delivery of the property to the 
plaintiff, the defendant may, if he do not except to the sure* 
ties of the plaintiff, require the return thereof, upon giving 
to the sheriff a written undertaking, payable to the plain- 
tiff, excuted by one or more sufficient sureties, to the effect 
that they are bound in double the value of the property, as 
stated in the affidavit of the plaintiff, for the delivery 
thereof to the plaintiff, if such delivery be adjudged, and 
for the payment to. him of such sum as may, for any cause, 
be recovered against the defendant. If a return of the prop- 
erty be not so required within three days after the taking 
and service of notice to the defendant, it shall be delivered 
to the plaintiff, except as provided in section three hundred 
and thirty one. 

Improper bond taken, sberilT liable.— Where in claim and delivery, the 
sheriff returned to the defendant the property and only took from him a bond 
to indemnify the sheriff and not such a bond as this section requires, it is a 
breach of the sheriff 's official bond, which renders him and his sureties liable 
at once to an action by the plaintiff. Hughes v. Newsom, 86 — 424. 

Property disposed of by defendant after snit brougrht.— Where it is in 

evidence, in an action of claim and delivery, that the defendant has. since suit 
brought, disposed of the property, the plaintiff can recover the value of the 
property at the time of the demand. Miller v. Hahn, 84 — 226. 

Sec. 327 > Jtistification of defendant's sureties. C. C. P., s. 
182. 

The defendant's sureties, upon a notice to the plaintiff of 
not less than two or more th*an six days, shall justify before 
the court, a judge or justice of the peace, in the same man- 
ner as upon bail on arrest. Upon such justification the 
sheriff shall deliver the property to the defendant. The 
sheriff shall be responsible for the defendant's sureties, until 



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CLARK'S CODE OF CIVIL PROCEDURE. l6l 

they justify or until justification is completed or expressly 
waived, and may retain the property until that time; but 
if they, or others in their place, fail to justify at the time 
and place appointed, he shall deliver the property to the 
plaintiff. 

Sec, 328. Qualification and jMstiflcation of defendant^ 8 
sureties, how* C. C. P., «. 183* 

The qualifications of sureties, and their justification, shall 

be as prescribed, in respect to bail upon an order of arrest. 

Sec. 329. Property concealed in buildings, how taken. C. 
C. P., s. 184, 

If the property, or any part thereof, be concealed in a 
building or enclosure, the sheriff shall publicly demand its 
delivery. If it be not delivered he shall cause the building 
or enclosure to be broken open, and take the property into 
his possession ; and, if necessary, he may call to his aid the 
powers of his county, and if the property be upon the per- 
son the sheriff or other officer may seize the person, and 
search for and take the same. 

Sec. 330. Property when taken, how kept. C. C. P., s. 185. 

When the sheriff shall have taken the property, as in this 
chapter provided, he shall keep it in a secure place, and de- 
liver it to the party entitled thereto, upon receiving his law- 
ful fees for taking, and his necessary expenses for keeping 
the same. 

Sec. 331. Property taken, claimed by a third person. B. 
€., c. t, s. 10. 1810, c. 583, ss. 1, 2, C. €. P., s. 186. 

When the property taken by the sheriff shall be claimed 
by any person other than the plaintiff or the defendant, the 
claimant may interplead upon his filing an affidavit of his 
title and right to the possession of the property, stating the 
grounds of such right and title, and upon his delivering to 
the sheriff an undertaking in an amount double the value 
of the property specified in plaintiff's complaint, for the 
delivery of the property to the person entitled to the same, 
and for the payment of all such costs and damages as may 
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tLARK'S CODE OF CIVIL PROCEDURE. 

Ugainst him ; this undertaking to be executed 
lore sufficient sureties, accompanied by their 
pt they are each worth double the value of 
^ ...J. A copy of this undertaking and accompanying 
affidavits to be served by the sheriflf on the plaintiflF and de- 
fendant at least ten days before the return day of the sum- 
mons in said action, when the court, trying the same shall 
order a jury to be empaneled to inquire in whom is the right 
to the property specified in the plaintiff's complaint; and 
the finding of the jury shall be conclusive as to the parties 
then in court, and the court shall adjudge accordingly, un- 
less it is reversed on appeal. Provided, that in a court of a 
justice of the peace he may try such issue unless a jury be 
demanded, and then proceedings are to be conducted in all 
respects as in jury trials before courts of justices of the peace. 

f Rigrbt to interrene. — The right of an outside claimant to intervene is well 

\ settled by precedent. Sims v. Gcettle, 82 — 268. 

Interrener mast give bond before recelring the property.— The judge 

/ of the superior court has no right upon the affidavit of^ a third party claiming 
A the ownership of the goods, to order their delivery to him without security. 
Bear v. Cohen, 65 — 511. 

Loss of rig^htto interrene.— A third party claiming the property, loses his 
right by allowing three years to elapse after filing his petition to interplead, 
without moving further in the matter. Clemmons v. Hampton, 70—534. 

/ Appeal from refasal of application.— ^wrf'/r— Whether a third person 
,( who claims the property can appeal from an order of the court refusing his ap- 
plication to interplead. Clem mons v. Hampton, 7^— 534. 

Onlv issne on interpleader.— When an interplea is filed, the only issue 
submitted to the jury is as to the title to the property levied on. After prop- 
erty is taken, it is, until replevied, in the hands of the officer, in the custody of 
' the law. McLean v. Douglas, 6 Ired., 233. 

Sec. 332. Slieriff not bound to keep the property, but may 
deliver to claimant. K. C, c. 7, «. 10. 1810, c. 583,88. 1, 
2. C. €. r., 8. 186. (a.) 

Upon the filing by the claimant of the undertaking set 
forth in the preceding section, the sheriff shall not be bound 
to keep the property, or to deliver it to the plaintiff; but 
may deliver it to the claimant, unless the plaintiff shall 
execute and deliver to him a similar undertaking to that 
required of claimant; and notwithstanding such claim, 
when so made, the sheriff may retain the property a reason- 
able time to demand such indemnity. 



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163 



Sec. 333. Undertaking and affidavit, when and where to 
be filed. C. C. JP., 8. 187. 

The sheriff shall return the undertaking, notice and aflS- 
davit with his proceedings thereon to the court in which 
the action is pending within ten days after taking the prop- 
erty mentioned therein. 

Snmniar J jadgrment against soreties.— A sumBOary judgment may be ren- 
dered upon the undertaking against the sureties, at the time of trial. Ins. Co. 
V. Davis, 74 — 78 ; Marker v. Arendell, 74 — 85. 

All reqairements must lie compiled with.— All the requirements of this 
sub-chapter must be complied with to entitle a party to maintain an action for 
claim and delivery. Hirsh v. Whitehead, 65 — 516. 

NoTF. — As regards the verdict and judgment, in actions to recover specific 
personal property, embracing all cases in which the aid of this provisional 
remedy can be invoked, see gg 409 and 431, post, and the cases and notes un- 
der that section. 



CHAPTER THREE. 
INJUNCTION. 



Section. 

334. Injunction as a provisional 
remedy abolished, and in- 
junction by order substitu- 
ted. 

336. What judge to grant in- 
junctions and restraining 
orders. 

336. Before what judge returna- 

ble. 

337. Parties to application for in- 

junction may by written 
stipulation designate a 
judge to hear the same : 
proviso. 

338. Injunction, in what cases 

allowed. 

339. At what time granted ; copy 

of affidavit to be served. 

340. Injunction after answer, al- 

lowed upon notice. 



Sectice. 

341. UndertaMng upon injunc- 

tion ; damages, how ascer- 
tained. 

342. Order to show cause ; re- 

straint in the meantime. 

343. Injunction to suspend busi- 

ness of corporation not 
granted unless undertaking 
is given. 

344. Injunction without notice, 

vacated or modified upon 
notice. 

345. Application to modify or va- 

cate upon affidavit, may 
be opposed by affidavit. 

346. Restraining oider shall not 

be granted for more than 
twenty days without no- 
tice ; but continue until 
dissolved on notice. 



Sec. 334. Injunction as a provisional remedy abolished, 
and injunction by order substituted. C. C. JP., s. 188. 

The writ of injunction as a provisional remedy is abol- 
ished, and a temporary injunction by order is substituted 



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164 CLARK'S CODE OF CIVIL PROCEDURE. 

therefor. The order may be made by any judge of a supe- 
rior court, in the cases provided in section three hundred 
and thirty-eight, and may be enforced as the order of the 
court. Upon such order, it shall be issued by the clerk of 
the court in which the action is requirtjd to be tried. 

Restraining order for more than twcntj dajs.— An order to stay pro- 
ceedings, made without notice, by a judge out of court, for a longer time than 
twenty days, is irregular, and a demurrer to the complaint in the action may 
be treated as a motion to dismiss. Foard v. Alexander, 64 — 6g. 

Bemedj bj motion in the cause. — While an action is pending, relief 
should be had by a defendant, aggrieved by any judgment, by applying to the 
court in which it was rendered for a modification of the same and for a super- 
sedeas or other stay of proceeding, and not by an injunction. Chambers v. 
Penland, 78-^53; Jones v. Cameron, 81 — 154. 

Relief can not be allowed upon a new action asking an injunction when it 
could be had by a motion in the original cause. Faison v. Mcllwaine, 72 — 312; 
Mason v. Miles, 63 — 564; Jarman v. Saunders, 64 — 367. 

An injunction will not be granted where the same matter is involved in an- 
other suit pending between the same parties, in which relief can be had. 
Grant v. Moore, 88—77. 

Another motion for injunction pending.— A pending and undecided mo- 
tion for an injunction and receiver in one action excludes the interference of 
the court in another, especially at the instance of one who is competent to be- 
come a party to, and receive redress in^ the first action. Young v. Rollins, 
85-485. 

Applicant for an ii^unction must malte ftill discoTerj.- The court will 

require the party applying for an injunction to make a full discovery of facts, 
and use perfect candor in alleging them. Phifer v. Barnhart, 88 — 333. 

Distinction between common and special injunctions.- Distinction be- 
tween common and special injunctions, under the former practice, drawn, and 
their application to the provisional remedy shown. Heilig v. Stokes, 63 — 612. 

Hec. 335. WJiat judge to grant injunctions and restraining 
orders. 1876''7, c. 232, s. 1. 1870, c. 03, ss. 1, 3. 

The judges of the superior court of this state shall have 
jurisdiction to grant injunctions and issue restraining or- 
ders in all civil actions and proceedings which are author- 
ized by law : Provided^ that a judge holding a special term 
in any county may grant an injunction or issue a restrain- 
ing order, returnable before himself, in any caee which he 
may have jurisdiction to hear and determine, under the 
commission issued to him, and the same shall be returna- 
ble as directed by the judge in the order. 

PreTions to act of 1876-^7. — The practice, under this section, previous to 
the act of i876-'7, was, in effect, that any judge of a superior court might issue 
an injunction order or order of restraint, but only the judge of the district in 
which the county was located, where the action was triable, could hear a mo- 
tion to modify or vacate such an order. Mauney v. Com'rs, 71 — 486. 



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CLARK'S CODE OF CIVIL PROCEDURE. 165 

Under the present act.— Under the act as modified by ch. 65, acts of 1879, 
a motion for an injunction may be made before the resident judge of the dis- 
trict, or one assigned to the district, or one holding the courts thereof by ex- 
change, at the option of the mover. Corbin v. Berry, 83 — 27. 

The superior court of one county will not abate by injunction a nuisance 
erected by a corporation which is in the hands of a receiver appointed by the 
superior court of another county. Brown v. Railroad, 83 — 128. 

Sec. 336. Before what Judge returnable. 1876''7, c 232, 
8. 2. 1879, c. 63S, 88. 2, 3. 1881, c. 51, 8. 1. 

All restraining orders and injunctions granted by any of 
the judges of the superior court, except a judge holding a 
special term in any county, shall be made returnable be- 
fore the resident judge of the district or the judge assigned 
to the district, or holding by excliange the courts of the dis- 
trict where the civil action or special proceeding is depend- 
ing, within twenty days from date of order. And if the 
judge before whom the same is returned shall, from sick- 
ness, inability or from any cause, fail to hear said motion 
and application or to continue the same to some other time 
and place, then it shall be competent for any judge resident 
in some adjoining district, or a judge assigned to hold the 
court of some adjoining district, or the judge holding by ex- 
change the court of some adjoining district, to hear and de- 
termine the said motion and application, after giving ten 
days* notice to the parties interested in the application or 
motion, upon its being satisfactorily shown to him by aflS- 
davit or otherwise that the judge before whom the same 
was returnable failed to act upon the same or to continue 
the same to some other time and place. The effect of such 
removal shall be to continue in force the motion and appli- 
cation theretofore granted, till the same can be heard and 
determined by the judge having jurisdiction of the same. 

Under the acts of 1879 and 1881.— Under the acts of 1879 restraining 
orders must be made returnable at some place in the district in which the action 
is pending, and before the resident judge or the judge holding the courts 
therein. By the act of 1881 the judge of an adjoining district may, in certain 
cases, (specified in above section,) hear the application. Galbreath v. Everett, 
84—546. 

Waiver of irregularity. — An irregularity in making a restraining order re- 
turnable at a point outside the district where the action is pending, is waived 
by failure to make the objection in apt time. Galbreath v. Everett, 84 — 546. 



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1 66 , CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 337 • Parties to application for injunction ma'§,by 
tvritten stiptUatioHj designate a judge to hear the same* 
1883, c. 33. 

By a stipulation in writing, signed by all the parties to an 
application for an injunction order, or their attorney, to the 
effect that the matter may be heard before any judge, to be 
designated in such stipulation, the judge before whom the 
restraining order is returnable by law, or who is by law 
the judge to hear the motion for an injunction order, shall, 
upon receipt of such stipulations, forward the same and all 
the papers to the judge designated in the stipulation, whose 
duty it shall thereupon be to hear and decide the matter, 
and return all the papers to the court out of which they 
issued ; Provided,, that the necessary postage or expressage 
money be furnished to said judge. 

Sec. 338. Ifijunctionf in what cases alloweil. C. C. JP.9 s. 
199. 

flj. Depends upon nature of the action. 

(1) When it shall appear by the complaint that the plain- 
tiff is entitled to the relief demanded, and such relief or any 
part thereof consists in restraining the commission or con- 
tinuance of some act, the commission or continuaoee of 
which, during the litigation, would produce injury to the 
plaintiff ; or 

Not a matter of discretion* — he granting or refusing an order of injunc- 
tion is not a mere matter of discretion in the judge, and either party may ap- 
peal; so that a second motion for injunction, upon the same grounds, should 
not be heard. Jones v Thome, 80 — 72. 

Where adequate compensation can be had bj action for damagres.— A 

restraining order will not he granted where adequate compensation can be had 
hy an action for damages. Hettrick v. Page, 82 — 65; Walton v. Mills, 
86—280. 

Where damasre will result from refusal^ and none from grranting.— 

Where the granting of an injunction can work harm to neither party, and a re- 
^ fusal to grant it will subject one of the parties to further litigation, costs and 

; ^ r : trouble, the injunction should be granted till the hearing. Walker v. Brem, 

" -1/ ^ ■ 76—407. 

Where no damage can result from a refusal.— An injunction will not be 
granted where no injury will result to the plaintiff fr«)m refusing. W. N. C. 
R. R. Co. V. N. C. R. R. Co., 88—79. 

Where ii^uncttre relief is the relief itself, and not aoxiliarj.— When 

the injunctive relief sought is not merely auxiliary to the principal relief 
demanded in the action, but is the relief itself, the court will not dissolve 



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CLARK'S CODE OF CIVIL PROCEDURE. 167 

I 

the injunction upon a preliminary hearing. Lowe v. Com'rs, 70 — 532; Mar- 
shall V. Cona*rs, 89 — . / 

Against COlleetiou of taxes.— An injunction lies at the instance of a tax- ^ Aiw-^'^ ^\^ 
payer to enjoin the collection of an illegal tax by a municipal corporation. Lon- / '"^ J 

don V. Wilmington, 78 — 109. ^^ 

An injunction /<'«<ilf«/^ ///^, in an action to test the constitutionality of an /- '^ /^\ 

act authorizing the collection of taxes for past years, will not be granted to re- 7 V -^ ^' 

strain proceedings under the provisions of the act, except to restrain the eohec- 
Hon of the tax^ until the merits of the controversy can be determmed. Rail- 
road 'VTCom'rs, 82 — 259. 

Against exercise of official fnnctions.—The judge below erred in granting 
an injunction, by which the persons in possession of the offices of mayor and 
aldermen of a city, and actually performing the duties of those offices, are re- 
strained from all official acts. Campbell v. Wolfenden, 74—103. /^ ^ , ' 

It is not sufficient to allege that the persons filling the offices were not regu-\ -'i 
larly or rightfully elected ; but it must also appear that they are abusing or r . ' ' 
about to abuse their possession of official power to the public injury ; and that \ 
the public will sustain no damage by the suspension, for an indefinite time, of J 
all city government. Ibtd. "• 

Against a town ordinance. — The remedy, for an injury resulting from the 
operation of an unlawful town ordinance, is not by injunction. The party in- 
jured has a complete redress in an action for damages. Cohen v. Com'rs, 77 — 2. 

Can not try title to office. — This section does not apply to a case where a 
plaintiff brings an action in his own name, alleging that he is the tax-collector 
of a county and that the defendant has usurped the office, and asking that he 
be restrained from exercising its functions. It is confined to cases in which 
some private right is the subject of controversy, and not the title to a public 
office. Patterson v. Hubbs, 65 — 119. 

•Against a mere trespass* — The entry on land that a court can enjoin is 
only an entry under force or color of legal process. It will not enjoin a mere 
trespass, unless irreparable damage is threatened. German v. Clark, 71 — 417. 

Can not try title to personal property*— The title to personal property / , 
can not be tried by injunction : Therefore, when a sheriff levied upon certain *C f^K'> r .. 
personal property, which had been allotted to the defendant in the execution 
as his personal property exemption, and remained in his possession, and was 
restrained by injunction from selling the same, it was error. Baxter v. Baxter, 
77—118. 

Upon dissolution of a corporation. — When a corporation has dissolved, 
and there is a contest as to whether the party seeking to collect its assets is an 
officer of he same or not, an injunction lies till the hearing. Dobson v. 
Simonton, 78 — 63. 

In an action brought for the dissolution of a corporation under acts 1875, ch. 
198, the court after publication of the summons has full control of the franchise 
and property of the company and an injunction will issue to prevent their being 
sold under an execution in favor of a creditor. Attorney General v. Roanoke 
Navigation Company, 84 — 705. 

Against remoYal of fixtures. — If a mortgagor who is allowed to retain pos- 
session, or if a vendee, under a bond for title is let into possession, makes im- 
provements and erects fixtures, he is not at liberty to remove the same, because, 
by his own default, he is not able to get the title, and he may be enjoined in an 
action for foreclosure or specific performance. Moore v. Vallentine, 77 — 188. 

Agnlnst sale or conveyance of land. — A complaint which allies that the 

defendant being an executor and having power to sell land under the will, sold 
for Confederate money and is about to make title, but does not allege fraud or 
collusion, is not sufficient ground for an injunction to restrain him from convey- 
ing. Sprinkle v. Hutchison, 66 — 450. 
When the affidavit alleges that the plaintiff has paid a trustee the whole of the 



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l68 CLARK'S CODE OF CIVIL PROCEDURE. 



trust debt and that the trustee threatens to sell, and the counter-affidavits ad- 
mit that he has paid a part of the debt and that he is entitled to a conveyance 
upon payment of the residue, the plaintiff is entitled to an order to restrain the 
sale until the hearing. Dockery v. French, 69 — 308. 

An injunction does nor lie to prevent a sale of land to prevent a cloud being 
cast upon the title. Southerland v. Harper, 83, — 200 ; Cunningham v. Bell, 
S3— 238. 

An injunction to restrain the sale of land conveyed in a deed to secure a debt 
will be granted where the parties dealing together have settled their accounts and 
a note secured by the deed is given for the balance found due and fraud is alleged 
to have been practiced upon the mortgagor or trustor in such settlement. The 
sale by the trustee will be enjoined until the amount due is ascertained under the 
directions of the court. Pritchard v. Sanderson, 84 — 299. 

An injunction against the sale of land was properly granted on the motion of 
the heirs of the deceased, where the land was advertised under the power con- 
tained in an alleged will which was admitted to probate without notice to the 
heirs and upon insufficient testimony and the validity of the will is in controversy. 
Gilbreath v. Everett, 84—546. 

The purchaser of land sold under execution is not entitled to an injunction 
to restrain a creditor from selling tlie property under an alleged prior incum- 
brance. Fox V. Kline, 85 — 173. 

An injunction lies to restrain, till the hearing, the sale of land, under terms 
embraced in a contract of purchase, for such portion of the debt as is alleged 
not to be, in fact, for the purchase money, but incurred by the necessitous cir- 
cumstances of the vendee (or mortgagor) to obtain further time from the ven- 
dor (or mortgagee). Tillery v. Wrenn, 86 — 217. 

Agrainst executor or administrator* — When it is alleged in the complaint, 
that the defendant's testator occupied a fiduciary relation to the plaintiffs, and 
invested their money in certain real estate, and that no s<^ttlement of accounts 
had been had between the plaintiffs and such fiduciary, the defendant shoiTld 
be restrained until the hearing from selling such real estate for assets. McCor- 
kle V. Brem, 76—407. 

The extraordinary remedy by injunction will not be granted, when it appears 
that the petitioner has an ade(|uate remedy by regular proceedings in the cause. 
In an action against an administrator de bonis non^ to enjoin him from selling 
the land of the intestate for assets, it appearing that a petition for that purpose 
was pending in the probate court, and that the defendants therein denied the 
legality of the appointment of said administrator de bonis non ; and it further 
appearing that no account had been taken of the personal property of the in- 
testate : It was held, that the plaintiffs had an adequate remedy against the 
sale of said land in the probate court, and that therefore it was not error in the 
court below to dissolve the injunction theretofore granted. Johnson v. Jones, 
75—206. 

Lies against an insolvent administrator. Stenhouse v. Davis, 82 — ^432. 

Pending an appeal. — When an appeal has been perfected by the filing of 
the required undertakings, all further proceedings under the execution are sus- 
pended, by the clerk giving notice to the sheriff of that fact. It does not con- 
stitute a case for injunction, in an action against the sheriff and the plaintiff. 
Bryan v. Hubbs, 69 — 423. 

When a person, whose land has been taken by the commissioners of a town 
for public use, appeals from the assessment of damages made by those ap- 
pointed to value it, he waives all irregularity in the proceedings to condemn the 
same, and takes up, by his appeal, only the question of damages ; so that he is 
not entitled to an injunction to prevent its use by the corporation. Johnson v. 
Rankin, 70—550. 

A^nst erection of mills* — Where the rebuilding of a mill and dam would 
injure the plaintiff 's land and the health of his family, but the mill would be a 
public convenience, an injunction against its erection will not be granted. The 
plaintiff 's remedy is compensation for damages. Daughtry v. Warren, 85 — 136. 



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CLARK'S CODE OF CIVIL PROCEDURE. 169 

An injunction will not be granted to restrain the erection of a planing-mill, 
and cotton-gin (in process of construction) upon an allegation that they will, 
when completed, expose the plaintiff 's premises to increased perils of fire, and 
that the noise, &c., will render his dwelling unfit for a residence. Dorsey v, 
Allen, 85—358. 

See for former practice as to injunctions against erecting mills. Battle's Digest, 
vol. 3, p. 252, ei seq, 

AgAinHi execation. — Wlien the affidavit alleges that one of the defendants, 
who is the plaintiff's debtor, has conspired with tne other, to give him his bond 
without substantial consideration, and allow judgment and execution thereon, 
in order to defraud the plaintiff, the injunction will be continued to the hearing, 
although the defendants may deny the fraud in their answer. Heilig v. Stokes, 
63 — 612. 

That the party failed to sustain his defence, in an action through the unex- 
pected absence of the nominal plaintiff, whom he had not subpoenaed as a wit- 
ness, is no ground for an injunction against the judgment in such action. Wilder 
V. Lee, 64 — 50. 

A separate action can not be brought by the judgment debtor to restrain an 
execution, on account of irregularity -n the judgment or the execution. The 
proper remedy is a motion in the cause. Foard v. Alexander, 64 — 69 ; Burke 
Y. Stokely, 65 — 569. 

It is improper to make a sheriff a party to an action for injunction against 
process which he has in his hands. Jarman v. Saunders, 64 — 367. 

It is no ground for injunction against a judgment, obtained by the assignee 
of a bankrupt bank, that the defendant, ** being unable to obtain the bills of 
the bank," had tendered in discharge of the judgment, one-half its amount in 
currency, which was alleged to be the value of such bills. Smith v. Dewey, 
64—463. 

In an action by a debtor for mjunction against a judgment creditor, about to 
sell property undei execution, upon which there are mortgages, which the judg- 
ment creditor claims to be fraudulent, the mortgagees should be made parties to 
the action, in order that the rights of all concerned may be determined in one 
action. Gaster v. Hardie, 75 — 460. 

The remedy of a defendant aggrieved by a judgment is not by injunction, 
but by an application to the court, wherein the judgment was rendered, for re- 
lief. Chambers v. Penland, 78 — 53. 

One in quiet possession of land, as owner, may obtain an injunction to re- 
strain others from dispossessing him, by means of process obtained in a litiga- 
tion to which he was not a party. Banks v. Parker, 80 — 157. 

An injunction will not he against execution on a judgment, which might 
have been set aside by motion in due time under § 133, C. C. P., (§ 274, /^j/). 
Walker v. Gurley, 83—429. 

An injunction to restrain a plaintiff from executing his judgment against the 
defendant will not be wanted. If there is error in the judgment, the remedy 
is by a motion to modify the judgment and an order suspending proceedings. 
Parker v. Bledsoe, 87 — 221. 

(2) and (3) depend upon extrinsic facts. 
(2) When, during the litigation, it shall appear by afl5- 
davit of plaintiff or any other person, that the defendant is 
doing, or threatens, or is about to do, or procuring or suf- 
fering some act to be done in violation of the plaintiff's 
rights respecting the subject of the action, and tending to 
render the judgment ineffectual, a temporary injunction 
may be granted to restrain him therefrom. 
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170 



CLARK'S CODE OF CIVIL PROCEDURE. 



/. 



»- * 






Insolyency* — An allegation of insolvency is essential to the granting of an 
injunction, except in special cases, in which irreparable injury would be sus- 
tained though the defendant is solvent. Dunkart v. Rinehart, 87 — 224 ; Dunk- 
art v. Henry, 87 — 228; McCormick v. Nixon, 83-r-ii3; Jones v. Hill, 64 — 
198. 

Where the lessee sues the lessor on claim and delivery for his part of the crop 
and the lessor is solvent, an injunction will not be granted to restrain such 
lessor from selling the crop. Wilson v. Respdss, 86 — 112. 

Irreparable ll\]lirj. — Where a defendant gave a railroad company license 
in writmg to cross his lands if they would open a street upon his premises in 
consideration of being allowed to do so, and the company ran across his lands 
and did not open the street, and were notified by him that he would re-possess 
the land occupied by the track, if they did not open the street in fifteen days, 
held to be a threat of irreparable injury, which entitles the company to an in- 
junction until the final hearing. W. & T. R. R. Co. v. Battle, 66^540. 

An injunction will be granted until the hearing, where the plaintiff alleges 
irreparable injury and make out an apparent case. Marshall v. Com'rs, 89 — , 

Where injury is COI\]ectaral. — Ihe use of water by an upper proprietor 
will not be restrained in favor of a lower proprietor while the damage is as yet 
conjectural merely, and denied by the defendant, and when the injury (if any) 
can be adequately compensated by damages. Walton v. Mills, 86—280. 

A^^ainst sale under mortgrage. — When a vendee of land secures the pur- 
chase money by mortgage, makes valuable improvements, and after default ob- 
tains an injunction to restrain a sale, the defendants (the vendors) have a right 
to have a receive^ appointed. Howes v. Mauney, 66 — 218. 

A party who purchases land must, in general, look to his vendor alone for a 
title ; and in the absence of a warranty and of fr<iud, the doctrine of caiteat 
emptor applies between the vendor and the vendee. Where A, a corporation, 
purchased from B, land sold under a mortgage, and on the same day mortgaged 
the land to C, the fact that D claimed title to the land, and had broi^ht an ac- 
tion to assert that title, is not sufficient ground for an injunction against C, re- 
straining the sale of the land under his mortgage, although A, at the time of 
purchasing the land, was ignorant of the claim. Gold Amalgamating Co. v. 
Ore Dressing Co., 73 — ^468. 

The plaintiff instituted an action against the defendants for an account, 
whereupon the defendants, under powers contained in certain mortgages exe- 
cuted to them by the plaintiff, advertised his land for sale ; there had been nu- 
merous dealings between the parties for many years, and the status of the ac- 
count was m dispute : Held, that the defendants should be restrained from 
selling under the mortgages, until- the action for account is tried and the bal- 
ance due ascertained by judgment. Capehart v. Biggs, 77 — 261. 

Where there have been mutual dealings between the parties, several mort- 
gages given and the balance due from the mortgagor is in dispute, a sal6 ad- 
vertised under the power given in the mortgage should be enjoined until the 
balance is ascertained and declared by a decree of court. Purnell v. Vaughan,* 
77—268. 

An injunction against carrying out a contract of sale, made under a power 
contained in a mortgage, will not be granted where the relief which the plain- 
tiff claims is not sought until afler the sale is made and the rights of purchasers 
have intervined. The plaintiff should have attended at the sale and given 
notice of his claims. Pender v. Pitman, 84—372. 

Where the eyidenee Is conflicting^* — An injunction will be continued to 

the hearing to retain control of a trust fund in dispute, where there is a reason- 
able probability that the plaintiff is entitled to relief and the evidence is con- 
flicting. Morris v. Willard, 84 — 293. 

Against collection of assets of dissolved corporation.— When a corpo- 

ration is dissolved an injunction will lie to prevent collection of its assets, by 
any one whose right to do so is contested. Dobson v. Simonton, 78 — 63. 



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CLARK'S CODE OF CIVIL PROCEDURE. 171 

AgBinst cntUnir timber* — Does not lie to restrain from cutting timber, un- 
less the defendant is insolvent. McCormick v. Nixon, 83 — 113. 

An injunction will not be granted to prevent the cutting of trees for timber, 
unless from the insolvency of the 'alleged trespasser compensation in money 
can not be had. Dunkart v. Rinehart, 87 — 224. 

Against WOrkiniT & mine. — Will not be granted to stop the working of a 
gold mine, but if defendant is insolvent a receiver will be appointed. Parker 
v. Parker, 82—165. 

Against working torpentine trees* — An injunction, restraining defend, 
ants from .working turpentine trees, when the answer meets every material alle- 
gation of the complaint, and the mischief complained of is- not irreparable, (no 
other affidavits being filed by the plaintiff) will be dissolved upon the hearing 
of the hearing of the complaint and answer. Bell v. Chadwick, 71 — 329. 

Bents and profits. — When a mortgagor remains in possession after the date 
of forfeiture, and is alleged to be insolvent and disposing of the crop raised on 
the premises, in an action to recover rental for the time elapsing alter forfeit- 
ure, the mortgagee is entitled to an injunction to restrain such sjUe pending the 
action. Jones v. Hill, 64 — 198. 

Pending ati action for the recovery of land, an injunction does not lie, re- 
straining the defendant from enjoying the fruits of his possession and claim of 
title ; and especially where it does not appear that the plaintiff will lose the 
fruits of his recovery, if he establishes his title. Baldwin v. York, 71 — 463. 

Where a plaintiff sues in forma pauperis to recover land, and during the pen- 
dency of the suit takes possession of a part thereof and resists the re-occupa- 
tion by defendant, an order for an injunction and a receiver to take control of 
the usurped premises and secure the rents and profits, upon the defendant's 
application, is properly granted. Korton v. White, 84 — 297. 

(3) And where, during the pendency of an action, it 
shall appear by affidavit of plaintiff or any other person, 
that the (^fendant threatens, or is about to remove or dis- 
pose of his property, with intent to defraud the plaintiff, a 
temporary injunction may be granted to restrain such re- 
moval or disposition. 

Sec, 339. At wh*it time granted ; a copy of affidavit to he 
served. C. C. JP., s. 190. 

The injunddon may be granted at the time of commenc- 
ing the action/^ at any time afterwards, before judgment ; 
upon its appearing satisfactorily to the judge, by the affida- 
vit of the plaintiff, or of any other person, that sufficient 
grounds exist therefor. A copy of the affidavit must be 
served with the injunction. 

Can not issue before snmmons* — An injunction granted before the issuing 
of^the summons in the action is premature and irregular. Patrick v. Joyner, 
63 — 573; Trexler v. Newsom, 88 — 13. 

Wairer of irregnlarity. — An injunction order can only be granted at the 
time of the issi^ of the summons or afterwards. If it be granted before, or if 
it direct the issue of a summons, it is irregular, and will be dissolved on motion. 
But if the defendant answer the complaint and objection be not taken till the 
trial, the irregularity is deemed to have been waived, and the court will notno- 



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1/2 CLARK'S CODE OF CIVIL PROCEDURE. 

tice it, sua sponte. Heilig v. Stokes, 63 — 6i2 ; McEachin, 64 — 72; Hirsh v. 
Whitehead, 65 — 516. 

Affldarit* — In an application for injunction an affidavit by one not a party 
to the action, that what he has stated in the complaint is true, cannot be con- 
sidered, he having stated nothing in the complaint. Martin v. Sloan, 69 — 128. 

Yeriflcation of affldaYit* — The affidavit for a provisional remedy is suffi- 
ciently verified, when made before a commissioner of this state resident in an- 
other state, and authenticated by his official seal and signature. Young v. Rol- 
lins, 85 — ^485. 

Hec, 340, Injunction after answer allawed, upon notice, ۥ 
€. P., 8. 191. 

An injunction should not be allowed after the defendant 
shall have answered, unless upon notice, or upon an order 
to show cause; but in such case the defendant^ may be re- 
strained until the decision of the judge granting or refus- 
ing the injunction. 

Notice essential* — An order to restrain proceedings for more than twenty 
days, made by a judge at chambers, without notice to the adverse party, will be 
set aside on motion. Foard v. Alexander, 64 — 69. 

Sfe § § 594 and 595, post, and cases there cited. 

It is error to grant an injunction staying execution on a judgment, without: 

1. Notice to the plaintiff, and 

2. An undertaking for at least a sum equal to the judgment. Faison v. 
Mcllwainfc, 72 — 312. 

Sec. 341. Undertaking upon injunction ; damages, how 
ascertained. C. C. P., s. 192. 

Upon granting a restraining order or an order for an in- 
junction, the judge shall require as a condition precedent 
to the issuing thereof, that the clerk shall take from the 
plaintiff a written undertaking, with suflScient sureties to 
be justified before, and approved by, the said clerk, or by 
the judge, in an amount to be fixed by the judge, to the 
effect that the plaintiff will pay to the party enjoined such 
damages, not exceeding an amount to be specified, as he 
may sustain by reason of the injunction, if the court shall 
finally decide that the plaintiff was not entitled thereto. 
The damages may be ascertained by a reference or other- 
wise, as the judge shall direct^ and the decision of the court 
thereupon shall be conclusive as to the amount of damages, 
upon all the persons who have an interest in the undertak- 
ing. 

No and(^rtal(insr ilied. — Semble, that an injunction granted without requir- 
ing an undertaking, is irregular but not void. Sledge v. Blum, 63 — 374. 



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CLARK'S CODE OF CIVIL PROCEDURE. 1/3 

It is error to grant an injunction without requiring the plaintiff to give the un- 
dertaking required by this section, and such order must be vacated on motion. 
Sledge V. Blum, 63—374 ; Hirsh v. Whitehead, 65—516 ; Faison v. Mcllwaine, 
72 — 312 ; Miller v. Parker, 73—58. 

Undertaklug filed but no sammons issued* — If an injunction bond has 
been filed without the issue of summons, judgment for costs and damages may 
still be rendered against the principal and sureties thereto. Mc Arthur v. Mc- 
Eachin, 64 — 72. 

Deposit ill lien of nndertaking'* — Where an injunction order requires the 
plaintiff to give an undertaking with sufficient sureties, it seems that a deposit in 
money of the sum named will suffice ; at least, the giving of the undertaking be- 
fore a motion to vacate, after having made such a deposit, will prevent the order 
being vacated on that account. Richards v. Baurman, 65 — 162. 

Undertaking must specify amount.- The injunction bond is not void 
though no amount is named therein. Gold Co. v. Ore Co., 79 — 48. 

Judge can pass upon sufficiency of sureties.— The judge has the right to 
take the bond and to determine the sufficiency of the sureties. The judge is 
not concluded by the action of the clerk in passing upon their sufficiency. A 
motion to the judge to approve the bond requires no notice to the other side. 
Stemberger v. Hawley, 85 — 141. 

• Damages against the plaintiff and bond.— Fees paid to counsel, beyond 
the sums albwed to be recovered by the party prevailing in the action, under 
Title XII of the Code, (not then repealed) are not a part of the damages sus- 
tained by reason of the injunction. Hyman v. Devereux, 65 — 588. 

In ascertaining the damages sustained by reason of an injunction staying pro- 
ceedings, reference must be had to its effect on the debt, the collection of which 
was enjoined. If the defendant has become insolvent during its continuance, 
the whole debt should be included ; if his condition is unchanged, only the costs 
and dbbursements in the proceeding for injunction. MeKesson v. Hennessee, 
66—473. 

A separate action can not be brought upon an injunction bond for damages ; 
nor is it a proper injunction bond if it specifies no amount. Gold Company 
V. Ore Company, 79 — 48. 

Quere. Whether a jury trial is a matter of right upon the question of such 
damages ? Ibid. 

To entitle the defendant to recover damages, he must show want of probable 
cause, or malice, in the plaintiff. Burnett v. Nicholson, 79 — 548. 

It seems the damages are recoverable on a restraining order as upon an injunc- 
tion, and whether a bond is given or not. Ibid. 

Hec, 342, Qnlerto nhow cause ; restraint in the mean time* 
C. C. P., s. 193. 

If the judge deem it proper that the defendant, or any of 
several defendants, should be heard before granting the in- 
junction, an order may be made requiring cause to be shown, 
at a specified time and place, why the injunction should not 
be granted ; and the defendant may, in the meantime, be 
restrained. 

Notice. — An injunction to restrain proceedings should never be allowed except 
on notice to the adverse party, and then only on the party applying giving bond 
in a sum at least equal to the judgment sought to be restrained. Faison v. Mc- 
llwaine, 72 — 312 ; Foard v. Alexander, 64 — 69. 



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174 CLARK S CODE OF CIVIL PROCEDURE. 

Sec, 343. Injunction to suspend business of corporation 
not granted^ unless undertaking is given* C C P.^ s, 194* 

An injunction to suspend the general and ordinary busi- 
ness of a corporation shall not be granted without due no- 
tice of the application therefor, to the proper oflScers of the 
corporation, e xcept \fhere the state i^ a^ party to the pro- 
ceeding, unless the plaintiff shall give a written undertak- 
ing, executed by two suflScient sureties, to be approved by 
the judge, to the effect that the plaintiff will pay all dam- 
ages, not exceeding the sum to be mentioned in the under- 
taking, which such corporation may sustain by reason of 
the injunction, if the court shall finally decide that the 
plaintiff was not entitled thereto. The damages may be 
ascertained by a reference, or otherwise, as the court shall 
direct. 

Sec. 344. Injunction without notice, vacated or tnodifted 
upon notice. C. C. -P.. s. 195. 

If the injunction be granted without notice, the defend- 
ant, at any time before the trial, may apply, upon ten days' 
notice to the judgs having jurisdiction thereof, to vacate or 
modify the same. The application may be made upon the 
complaint and the aflBdavits on which the injunction was 
granted, or upon the aflSdavits on the part of the defendant, 
with or without answer ; but if no such application be made, 
the injunction shall continue, and be in force until such 
application shall be made and determined b%the judge, 
and a verified answer has the effect only of an aflBdavit. 
What judge has Jarisdfction to racate.— A judge has no power to vacate 

injunctions except in his own district : but a judge who exchanges districts with 
another, for a whole circuit or for a series of courts, becomes the judge of that 
district during the continuance of such courts. Bear v. Cohen, 65 — 511 ; Mor- 
ris V. Whitehead, 65 — 637. 

The practice, under this section previous to the act of i876-*77, was, in ef- 
fect, that any judge of a superior court might issue an injunction order or order 
of restraint, but only the judge of the district in which the county wps located, 
where the action was triable, could hear a motion to modify or vacate such or- 
der. Mauney v. Com'rs, 71 — 486. 

The judge of an adjoining district can now, in certain circumstances, hear an 
application upon a restraining order, (under acts i88r, ch. 51). Galbreath v. 
Everett, 84—546. 

Modiflcation without notice. — A judge may modify an injunction, upon 
application of the defendant, without notice^ if he found his action solely upon 



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CLARK'S CODE OF CIVIL PROCEDURE. 175 

the affidavits of the plaintiff. He can not in such case hear any affidavits or 
consider the answer of the defendants. Sledge v. Blum, 63 — 374. 

Injunction will be dtssolred^ when* — Where the defendant on the filing 
of his answer fully , completely and directly denies the facts on which any equity 
in plaintiff *s favor arose, it is his right to have the injunction dissolved, in all 
cases of contmon injunctions. Heilig v, Stokes, 63 — 612 ; Capehart v. Mhoon, 
Bus. Eq., 30; Faison v. Mcllwaine, 72—312; Perry v. Michaux, 79 — 94; 
Walker v. Gurley, 83 — 429 ; Perkins v. Howell, 5 Ired. Eq., 24 ; Sharpe v. 
King, 3 Ired. Eq., 402. 

Where a restraining order has been obtained and continued until the term 
when the defendants were summoned to answer, and upon their answer being 
filed the judge refuses to grant the injunction, on consideration of the com- 
plaint anci answer : This is not error, where the answer denies all the allegations 
of the complaint. Woodfin v. Beach, 70—455, 

The plaintiffs, tax-payers in a township, obtained an order, restraining the 
defendants from collecting certain taxes to pay the accumulated debt of the 
township, and to defray the current expenses thereof, alleging in their com- 
plaint that the debt was fraudulent, had never been leeally audited, and had 
been ordered by the defendants to be pai^^s'a whole, or iii~^ barfch," and 
not each claim separately. The answer of the defendants denies each and every 
nq^teriai allegation in the complaint, and no other affidavits were filed : //eld, 
tnat his Honor, who heard the case after the answer was filed, did not err in 
vacating the tediporary restraiiiing order and suffering the defendants to collect 
the tax already levied. Mitchell v. Comm'rs, 74 — ^487. 

Injunction will not be dissolred, when. — Upon a motion to dissolve an 
injunction, where a fund has been taken in custody of the law, the rule is, that 
as the court has hold of it, it will not let it go, if the plaintiff show probable 
cause, from which it may be reasonably inferred, that he will be able to make 
out his case on the final hearing. On the contrary, if it appear from the plead- 
ings and affidavits that there is not probable cause, the injunction will be dis- 
solved. Craycoff v. Morehead, 67 — 422. 

Where the injunctive relief sought is not auxilliary to another and main relief, 
but is the main rehef itself and the object of the action, the dissolution of the 
injunction would be equivalent to a dismissal of the action, and in such cases the 
court will not dissolve the injunction where a reasonable doubt exists whether 
the equity of the complaint is sufficiently negatived by the answer. Lowe v. 
Com'rs, 70 — 532 ; Marshal] v. Com'rs, 89. — 

In an application for a special injunction, when the property is in custodia 
U^is, the court will not let go the property and allow the same to be sold, if 
there is a probabihty that the merits are with the plaintiff, notwithstanding the 
defendant s answer denies the allegation upon which such application is founded. 
Where the material facts of the plaintiff's complaint are not denied, the injunc- 
tion will most certainly be continued to the hearing. Ponton v. McAdoo, 
71 — lOI. 

Appeal. — Qtiere. If an appeal lies from an order vacating, refusing or grant- 
ing an injunction ? French v. Wilmington — 75 — 387. 

On the hearing of an appeal from an order granting or refusing an injunction, 
the supreme court will review the findings of fact of the judge below. Jones 
V. Boyd, 80—258. 

Bee. 345. Application to modify or vac<Ue upon affidavit^ 
muy be opposed by affidavit* C. C JP., s. 196. 

If the application be made upon affidavits on the part of 
the defendant, but not otherwise, the plaintiff may oppose 
the same by affidavits or other proof, in addition to those 
on which the injunction was granted. 



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CLARK'S CODE OF CIVIL PROCEDURE. 



Additional affldarits bj plaintiff. — When a defendant, upon a motion to 
vacate, uses his answer as an affidavit, the plaintiff may file counter affidavit. 
Howerton v. Sprague, 64 — 451. 

When the defendant meets the plaintiff's allegations by counter affidavits, it is 
competent for the plaintiff to support his original affidavits by others and in reply 
to those offered by the defendant Young v. Rollins, 85 — 485. 

Note.— The additional affidavits will be allowed in the case of attachment pro- 
ceedings to cure the defects, in the original affidavit. Clark v. Clark, 64 — 150. 

Sec, 346. ReMrahiing orger shall not be granted for more 
than twenty days without notice ,• htU continue until dis^ 
solved on notice. C C i*., «. 345. 

No restraining order, or order to stay proceedings for a 
longer time than twenty days, shall be granted by a judge 
out of court, except upon due notice to the adverse party ; 
but the said order shall continue and remain in force until 
vacated upon notice. 

An order to stay proceedings for a longer time than twenty days, made by a 
judge at chambers and without notice to the adverse party, will be set aside on 
motion. Foard v. Alexander, 64 — 69. 

Note. — For the practice as to injunctions and receivers obtaining prior to the 
C. C. P., see Battle's Digest, vol. 3, pp. 252 — 284. 



CHAPTER FOUR. 
ATTACHMENT. 



Section. 

347. In what aetions attachment 

may be issued. 

348. Warrant to accompany sum- 

mons, or to be issued af- 
terwards. 

349. What must be shown to pro- 

cure warrant. 
360. Warrant issued by justice of 
the peace ; publication to 
be made. 

351. Warrant, by whom granted. 

352. Warrant, how served. 

353. When warrant granted by a 

justice of the peace. 

354. Justice's attachments levied 

on land ; what to be done. 

355. Warrant procured ; affida- 

vits to be filed. 

356. Undertaking before issuing 

warrant. 



Section. 

357. Warrant, to whom directed 
and what to require. 

Validity of undertaking. 

Warrant, how executed*. 

Proceedings when property 
attached is perishable, or 
a vessel. 

Defendant may replevy be- 
fore sale. 

Interest in corporations or 
associations liable to at- 
tachments. 

Attachment, how executed 
on property incapable of 
manual delivery. 

A garnishee summoned to 
answer on oath ; judgment 
against garnishee. 

Proceedings against gar- 
nishee falling to apx>ear. 



358. 
359. 
360. 



361. 
362. 



363. 



364. 



365. 



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CLARK S CODE OF CIVIL PR0CP:DURE. \^^ 

SKCTioif. I Section. 

366. Garnishee denying he has ' 372. Bond of plaintiff, how dis- 

any property ; issue to be | posed of, on judgment for 

made up. ' defendant. 

367. Articles confessed by gar- | 373. Attachment discharged, and 
nishee, to be valued by ' property or its proceeds 



jury and judgment for 
their value ; in what ctises 
garnishee excused. 

368. Judgment conditional 

against garnishee, when. 

369. Certificate of defendant's in- 

terest to be furnished. 

370. Judgment, how satisfied. 

371. When action to recover 

notes, &c., of defendant 
may be prosecuted by 
plaintiff in the action in 
which the attachment is- 
sued. 



returned to defendant on 
his appearance in action. 

374. Undertaking of defendant 

on appearance to discharge 
the property. 

375. Property claimed by third 

party, may interplead. 

376. When the sheriff to return 

warrant, with his proceed- 
ings thereon. 

377. Motion to vacate or modify 

a warrant, or increase se- 
curity. 

378. Exception to and justifica* 

tion of sureties. 



Hec. 347* In tvhnt actions tUtachment may be issued, ۥ 
C. P., s. 197. 

A warrant of attachment against the property of One or 
wore defendants in an action, may be granted upon the 
application of the plaintiff, as specified in this chapter, 
when the action is to recover a sum of money only, or dam- 
ages for one or more of the following causes: 

(1). Breach of contract, express or implied; 

(2). Wrongful conversion of personal property ; 

(3;. Any other injury toi)er8onal property, in consequence 
of negligence, fraud, or otner wrongful act. 

No .summons. — If no summons issued in the action, the warrant of attach- 
ment is not only irregular, but void. Marsh v. Williams, 63 — 371. 

SommoilS returnable. — Notwithstanding the provisions of its eleventh sec- 
tion, the act of i868-'69, chapter 76, is to be construed as requiring the sum- 
mons in cases where the defendant is a non-tesiiiertt, to be returned to the term 
of the court, though that section requires the ivarrant of attachment to be re- 
turned be/ore the clerk. Backalan v. Littlefield, 64 — 233. 

Where a summons was made returnable — and the complaint, and answer, in 
chief, were filed, be/ore the clerk ^ (Jutyt 1869.) and he returned the case to 
the next term, the docket of which showed the names of the respective 
counsel marked to such case : Held^ that, at spring term, 1870. it was competent 
for the judge to amend the summons by making it returnable to the tertn^ in ac- 
cordance with the act of i868-*6g, chapter 76. Thomas v. Womack, 64 — 657. 

The ninth section of the act of i868-*69, (repealed by chapter 28 of the acts 
of i869-'7o), was unconstitutional. Latham v. Whitehurst, 69 — 33. 

23 



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178 CLARK'S CODE OF CIVIL PROCEDURE. 

Ancillary remedy. — Under the C. C. P. an attachment is not the founda- 
tion of an independent action, but an ancillary remedy collateral to the action. 
Toms V. Warson, 66 — 417 ; Marsh v. Williams, 63 — 371. 

Does not lie^ for ivhat causes. — An attachment does not lie for un- 
liquidated damages. Price V. Cox, 83 — 261; Wilson v. Manufacturing Co., 
88—5. 

Does not lie for a breach of promise of marriage. Price v. Cox, 83 — 261. 

Statute sabstantially complied with.— If it appearsfromthewA^/f record, 
that the statute has been substantially complied with, the action will not be dis- 
missed. Grant v. Burgwyn, 79 — 513. 

Effect of bankruptcy of defendant.— Where the defendant went into 
bankruptcy subsequent to the attachment, but before final judgment the at- 
tachment was properly dissolved. Whitman v. Guano Co., 65 — 552. 

Personal property exemption. — The personal property exemption of a 
resident of the state can not be sold under process of attachment. Com'rs v. 

Riley, 75—144. 

Rigllt to interyene. — Attachment is not the foundation of an independent 
action, but is a proceeding in an action aheady commenced. Hence a stranger 
to the action in which the attachment issues, has no right to intervene anti make 
himself a party to the attachment merely, though upon proof of interest in the 
property attached, he may be allowed to make up a collateral issue of title. 
Toms V. Warson, 66—417. See § Zl^ post, and cases there cited. 

Sec* 348* Wan'ant to accompany summons, or to be iss^ied 
afterwards. C. C. P., s. 197* 

The warrant of attachment may be granted to accom- 
pany the summons, or at any time after the commence- 
ment of the action. Personal service of the summons must 
be made upon the defendant against whose property the 
attachment is granted, within thirty days after the granting 
thereof, or else upon the expiration of the same time, service 
of summons by publication must be commenced pursuant 
to an order obtained therefor, and if publication has been, 
or is thjBreafter commenced, the service must be made com- 
plete by the continuance thereof. 

Irregrnlaritf of warrant.— A warrant of attachment which does not state 
when or where.it is returnable, is irregular. Backalan v. Littlefield, 64 — 233. 

The warrant of attachment is an auxiliary remedy, to secure the satisfaction 
of any judgment which may be obtained iii the action, and is not only irregular 
but void, when 

1. There is no summons to sustain the auxiliary remedy ; 

2. It does not appear that the defendant is trying to evade the service of pro- 
cess ; and 

3. The affidavit does not show ths\t the debtor has removed, or is about to re- 
move, assign, &c., his property, wtt/i intent to defraud his creditors. Marsh 
V. Williams, 63 — 371. 

The act suspending the Code (1868-69, chapter 76,) does not modify the pro- 
visions of the Code in regard to the return of a warrant of attachment. Backa- 
lan v. Littlefield, 64 — 233. 

Defectiye service by publication. — A defective service by publication may 
be rightfully remedied by an order for republication. Price v. Cox, 83 — 261. 



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CLARK'S CODE OF CIVIL PROCEDURE. 1 79 

A general appearance cnres all irregrnlarity.— If, after publication and 

issue of attachment, the defendant enters a general appearance, it cures all antece- 
dent irregularity in the process. Wheeler v. Cobb, 75 — 21. 

Sec. 349* What must be shown to procure the warrant* C. 
C. P., 8. 201. 

To entitle the plaintifif to such a warrant, he must show 
by afiSdavit to the satisfaction of the court granting the 
same, as follows : 

(1). That one of the causes (»f action specified in section 
three hundred and forty-seven exists against the defendant 
If the action is to recover damages for breach of contract, 
the defendant must show that the plaintifif is entitled to re- 
cover a sum stated therein, over and above all counter- 
claims known to him. 

(2). That the defendant is either a foreign corporation, or 
not a resident of the state; or, if he is a natural person, 
and a resident of the state, that he has departed therefrom, 
with intent to defraud his creditors, or to avoid service of 
summons, or keeps himself concealed therein with like in- 
tent; or, if the defendant is a natural person, or a domestic 
corporation, that he or it has removed, or is about to remove, 
property from the state, with inteni to defraud his or its 
creditors; or has assigned, disposed of, or secreted, or is 
about to assign, dispose of, or secrete, property with the like 
intent. 

A warrant will issae^ when. — A warrant maybe had. in the cases where it 
is provided, ]£ the amount of the demand i^ certain, or capable of being ascer- 
tained by some standard referable to the contract itself, sufficiently certain to en- 
able the plaintiff to aver it in his affidavit or the jury to find it. Price v. Cox, 
83 — 261 ; Wilson v. Manufacturing Co., 88 — 5. 

An attachment does not lie in an action for breach of promise. Price v. Cox, 
83—261. 

Non -residence* — A person voluntarily removing from this state to another, 
for the purpose of discharging the duties of an office of unlimited duration, re- 

?|uiring his presence there for an indefinite lime, is a non-resident of this state 
or the purposes of attachment, though he may occasionally visit the state, and 
intend to return at some indefinite future time. Wheeler v. Cob, 75 — 21. 

An affidavit upon which a warrant of attachment is based must be in writing, 
and must show that the defendant is a " non-resident and has property in this 
state." Windley v. Bradway, 77 — 333. 

Validity ol warrant, llOW determined.— The validity of an order of ar- 
rest and attachment is determined by the facts alleged in the original affidavit, and 
existing when the proceedings were commenced, not upon new matter there- 
after transpiring. Devries v. Summit, 86 — 126. 



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i8o Clark's code of civil procedure. 



Reqairements in affidayit. — The affidavit must comply strict iy with ail 
the requirements of the statute. Marsh v. Williams, 63 — 371 ; Love v. Young, 
69 — 65 ; Spier v. Halstead, 71 — 20g ; Wheeler v. Cobb, 75 — 21. 

Affidavit need not allege that court has jurisdiction, nor that defendant has 
property. Branch v. Frank, 81 — 180. 

Amendment of affidavit. — A plaintiff has a right to amend his affidavit as 
to mere matters of form ; and if he is ready to swear to the amended affidavit, it 
is error in the clerk to refuse it. Palmer v. Bosher, 71 — 291. 

Teriflcation by agent. — The requirements as to an "agent" under Code 
§ 258 (C. C. P., 117) do not apply to affidavits by an agent under this section. 
Bruff V. Stern, 81—183. 

Affidavit on information and belief. — An affidavit which states that the 
defendant has left the state with intent, as the affiant is infonned and believes^ 
to avoid the service of summons, is a substantial compliance with the section. 
Being a fact accomplished, the reasons need not be given on which the belief is 
founded. Hess v. Brower, 76 — 428 ; Clark v. Clark, 64 — 150. 

To the same effect also Hughes v. Person, 63 — 548 ; Smith v. Gibson, 74 — 
684 ; Wood V. Harrell, 74 — -338, and Wilson v. Barnhill, 64 — 121, cited under 
§ 291, in which the same principle is applied in '* Arrest and Bail." 

Alt Affidavit which alleges that the affiant ** believes that the defendants have 
disposed of their property, and are still doing so, with the intent to defraud 
their creditors ;" also "that the defendants are largely indebted, if not insolvent, 
have sold and are selling their large stock of goods at less than the cost of the 
same in the city of New York, and have disposed of other valuable property for 
cash," is amply sufficient. Gashine v. Baer, 64 — 108. 

It is sufficient ground for the belief that the defendant is " about to assign, 
dispose of or secrete," &c., that " the goods were secretly removed, after night 
fall, from their usual place," and that *' the persons having them when overtaken, 
several miles distant, made conflicting statements in regard to where they were 
going, and whose property they had. Brown v. Hawkins, 65 — 645. 

Affidavit sufficient. — An affidavit that the defendant had made an assign- 
ment to his father-in-law, the trustee being a preferred creditor for more than the 
value of the entire assets, that the assignment provided that the general cred- 
itors should be paid only on condition of releasing all claims ; that the trustee, a 
non-resident, had delegated the discharge of the trust to his son and the assign- 
ing debtor, and stating further that the defendant had secreted and disposed of 
his property, with intent, as the affiant believed, to defraud the plaintiff, is suf- 
ficient to continue the attachment till the trial. Bruff v. Stem, 81 — 183. 

Affidavit insafficient. — An affidavit in attachment proceedings which fails 
to allege that the defendant ** can not after due diligence be found in this state," 
does not warrant an order of publication. Faulk v. Smith, 84 — 501. 

An affidavit that "the defendant has departed from this state, or keeps him- 
self concealed therein to avoid service of the summons with intent to defraud his 
creditors," is not sufficient to authorize an order of publication. Faulk v. 
Smith, 84 — 501. 

A warrant of attachment can not be supported by an allegation in the affida- 
vit that the defendant is about to remove from the state to defrauc his cred- 
itors ; but such an allegation is material in an affidavit for a warrant of arrest. 
Upon motion to vacate such warrant, the judge may consider affidavits and any 
proper evidence adduced by the respective parties, to establish or controvert the 
allegations of the affidavit upon which the warrant was issued ; and his findings 
of facts upon the same are conclusive. Hale v. Richardson, 89 — . 

Note. — In what cases an attachment would have issued prior to C. C. P., 
see Battle's Digest, vol. I, pp. 107, 108. 



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CLARK'S CODE OF CIVIL PROCEDURE. l8l 

Sec. 350 . Warrant isHued byjufftice of the peace ; publica- 
tion to he made. C. C. P., 8. 198. 1868~*9, c. 96, «. 3. 
1870''!, c. 166, ». 4. 1874:''5, c. 111. 

The plaintiff, within thirty days after obtaining a war- 
rant of attachment from a justice of the peace, shall cause 
publication thereof to be made for four successive weeks at 
the court house door, and four other public places in the 
county where the warrant is returnable. 

Essentials of an affidavit for pnblieation. — In case of publication every, 
thing necessary to dispense with personal service must appear, and the affidavit 
will be fatally defective, if it fail to state that the defendant can not, after due 
diligence, be found in the state. Wheeler v. Cobb, 75 — 21 ; Faulk v. Smith, 
84 — 501. 

Or, where it does state that he is a non-resident, but omits to state ikai he has 
property therein. Spier v. Halstead, 71—209. 

Or, that he has disposed of property, &c., with intent ta defraud his cred- 
itors. Marsh v. Williamsj 63 — 371. 

Or, where it states that he "is absent, so that process cannot be served upon 
hira," if it omit to allege that his absence is with intent to defraud his creditors, 
and to avoid t/ie set vice of summons. Love v. Young, 6g — 65. 

Deposit of snmmons and complaint in postofflce.— In a proceeding by 
attachment, where the order for the publication for the summons was for four 
weeks instead of six, and no order was made to deposit a copy of the summons 
and complaint in the postoffice, directed to the defendant, nor was such deposit 
made, the attachment should be vacated. Bunvell v. Lafferty. 76 — 383. 

See § § 218 and 219, an4e, and cases there cited. 

Sec. 351. Warrant, by whom granted. C. C* P., h. 199. 
1869-'70, c. 147. 1870''71, c. 100, 88. 1, 3. 1874''5, c. 
111. 1870''7, c. 251, 8. 1. 

If the action bo not founded on a contract, or if founded 
on a contract and the sum demanded exceed two hundred 
dollars, a warrant of attachment may be obtained from the 
judge of the district, embracing the county in which the 
action has been instituted, or from the clerk of the superior 
court from which the summons in the action issued; and 
it may be issued to any county in the state, where the de- 
fendant has property, money, effects, choses in action or 
debts due him, and shall be made returnable in term time 
to the court from which the summons issued. 

Sec. 352. Warrant, how served. 1870-^1, c. 100, s. 3. 
1874''5,c. 111,8.2. 

When the warrant of attachment is taken out at the time / 
of issuing the summons, and the summons is to be served by L 



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1 82 CLARK'S CODE OF CIVIL PROCEDURE. 

'^ publication, the order shall direct that notice be given in 
^ said publication to the defendant of the issuing of the at- 
^ tachment, and when the warrant of attachment is obtained 
t^ after the issuing of the sumnions, the defendant shall be 
-> notified by publication of the fact for four successive 
\ weeks in some newspaper published in the county to which 
^ it is returnable, or if there be none such, then in one pub- 
^'lished in the judicial district including said county, and if 
.'' there be no newspaper published in the district, then in 
1^ any newspaper published in the state. Said publication 

I ^ shall state the names of the parties, the amount of the 
/:/ claims, and in a brief way the nature of the demand and 
f ^ the time and place to which the warrant is returnable: 

I I Provided, that in proceedings by attachment begun and had 
I '/before justices of the peace, advertisement in a newspaper 

/ 1 shall not be necessary, but in all such cases, advertisement 
/7 a_t the court house door and four other public places in the 
l^ county slialrt^isuffi'cient publication^ both as to the summons 
and warrant of attachment. 

Sec. 353. When warrant granted bf/ a justice of thepeacCm 
C. a p., »• 200. 1876-'7, c. 251. 

If the action be not founded on contract, and the value of 
the property in controversy does not exceed the sum of fifty 
dollars, the warrant of attachment may, or if the action be 
founded on contract, and the sum demanded does not ex- 
ceed two hundred dollars, the warrant of attachment must 
be obtained from, and made returnable before some justice 
of the peace of a county to the superior court of which it 
might have been returnable had the sum demanded ex- 
ceeded two hundred dollars, or had the action not have 
been founded on contract 

Sec. 354. Justice^s aUaehmetit levied on land ; what to he 
done. 1868-'9, c. 95, 8. 4. 

If the attachment be levied on real property, the justice 
shall proceed to try the action, but shall issue no execution 
to sell the real property, and shall return the papers in the 



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CLARK'S CODE OF CIVIL PROCEDURE. 1 83 

case to the ofiSce of the clerk of the superior court of his 
county, where the judgment shall be docketed. The levy 
of the attachment, however, shall be a lien on the real estate. 

A judgment of the superior court, upon a justice's execution Or attachment 
levied on land, under which judgment there was an execution and sale of the 
land, precludes all collateral enquiry into the regularity of the previous pro- 
ceedings. Grier v. Rhyne, 67 — 333. 

Sec* 3^5. Warrant procured ; affidavits to be filed. C C 
1^., 8. 201. 

It shall be the duty of the plaintiff procuring a warrant 
of attachment, within ten days from the issuing thereof, to 
file the affidavits on which the same was granted in the 
office of the clerk of the superior court to which, or with the 
justice of the peace before whom, the process is made return- 
able. 

Plaintiff has a right to amend his affidavit as to matters of form. Palmer y. 
Bosher, 71 — 291. 

See § 349, ante, and cases there cited. 

Sec. 356. Undertaking before issuing a fvarrant. C. C. P., 
s. 202. 

Before issuing the warrant, the officer issuing the same 
shall require a written undertaking on the part of the plain- 
tiff, with sufficient surety, to the effect, that if the defendant 
recover judgment, or the attachment be set aside by order 
of the court, the plaintiff will pay all costs that may be 
awarded to the defendant, and all damages which he may 
sustain by reason of the attachment, not exceeding the sum 
specified in the undertaking, which shall be at least two 
hundred dollars. 

To recover damages for wrongful suing out an attachment, malice or want 
of probable cause must be shown. Williams v. Hunter, 3 Hawks, 545 ; Kirk- 
ham V. Cox, I Jones, 423. 

Sec. 357* JFarrant^ to whom directed and what to require. 
C. C. P., s. 203. 

The warrant shall be directed to thesheriff of any county 
in which the property of such defendant may be, or in case 
it be issued by a justice of the peace to such sheriff, or to 
any constable of such county, provided such county be that 
of the justice issuing the warrant, and shall require such 



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l84 CLARK'S CODE OF CIVIL PROCEDURE. 

sheriff or constable to attach and safely keep all the prop- 
erty of such defeudant within his county, or so much thereof, 
as may be suflBcient to satisfy the plaintiff's demand, the 
amount of which must be stated in conformity with the 
complaint, together with costs and expenses ; it must also 
state when and where it shall be returned. Several war- 
rants may be issued at the same time to the sheriffs of dif- 
ferent counties. 
No retnru day npecified in warrant. —An attachment which specifies no 

day or place of return, is irregular, and will be vacated on motion. Backalan 
V. Litilefield, 64 — 233. 

Such defect is waived, if .the defendant appear and give an undertaking for 
the delivery of the property. Jkid. 

Exemptions* — Property seized under attachment is only a legal deposit in 
the hands of the sheriff to abide the event of the action, and after judgment 
against the defendant, he is entitled to the same exemptions in the property 
attached, as if there had been no attachment. Gamble v. Rhyne, 80—183. 

Sec. 358. Validity of undertaking. 

It shall not be a defence to an action upon an undertak- 
ii^gt given upon granting a warrant of attachment, that the 
warrant was granted improperly, for want of jurisdiction, 
or for any other cause. 

Sec. 359. Warrant, how executed. C. C. P., 8. 204. 

The oflScer to whom such warrant of attachment is di- 
rected and delivered, shall seize and tak^ into bis possession 
the tangible personal property of the defendant, or so much 
thereof as may be necessary, and he shall be liable for the 
care and custody of such property, as if the same had been 
seized under execution ; he shall levy on the real estate of 
the defendant as prescribed for executions; he shall make 
and return with the warrant an inventory of the property 
seized or levied on ; subject to the direction of the court, he 
shall collect and receive into his possession all debts owing 
to the defendant, and take such legal proceedings, either in 
his own name, or in that of the defendant, as may be neces- 
sary for that purpose. 

Upon wliat levied. — A levy on land, under an attachment issued by a jus- 
tice of the peace, is sufficient, if it gives such a description as will distinguish and 
identify the land. Grier v. Rhyne. 67 — 330. 

Where A enters into an agreement with B, to save the cargo of a wrecked ves- 
sel for a certain per cent, of its value, and lands a portion of it on the beach, in 



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CLARK'S CODE OF CIVIL PROCEDURE. 1 85 

a place of safety, they are joint tenants in the property saved, and the interes 
of A is liable to attachment. Insurance Company v. Davis, 68 — 17. 

An attachment can be levied on a fund belonging to the defendant and in 
the hands of an agent. Blair v. Puryear, 87 — loi. 

Note. — As to what property may or may not be attached, see also Battle's 
Digest, vol. I, pp. 108 — no. 

Senrlee upon debtor to defendant* — A warrant of attachment, served on a 
debtor to the defendant, does not subject such person to have iu(k;ment taken 
against him in the pending action, but only to a separate action for its recovery. 
Carmer v. Evers, 80—55. 

Exemptions. — The personal property of a resident of this state, exempted 
from sale under execution by the constitution, can not be sold under process of 
attachment. Com'rs v. Riley, 75 — 144 ; Gamble v. Rhyne, 80—183. 

Returnable before clerk; — The act suspending the Code, (acts of i868-'6^, 
chapter 76,) does not affect the return of the warrant of attachment. It is still 
returnable before the clerk. Backalan v. LittleHeld, 64 — 233. 

Note. — For return of attachment under former system, see Battle's Digest, 
vol. I, pp. no, III. 

Tacated by clerk* — The clerk of the superior court has jurisdiction to vacate 
an attachment, notwithstanding the act of i870-'7i, chapter 166, makes the 
summons returnable to court in term time. Palmer v. Bosher, 71 — 291. 

Sec, 360. Proceedings when property attfiched is perisha" 
hie, or a vessel. JB. C, c. 7, s. 6. 1777, c. 115, s. 28. C. C 
r., s. 205. 

If any property, so seized, shall be perishable, or of such 
character that the expense of keeping it until the determi- 
nation of the suit would be likely to exceed one-fifth of its 
value, or if any part of it consists of a vessel, or of any share 
or interest therein, and the person to whom it belongs, or 
his agent, shall not within ten days after the serving of 
such attachment, reclaim the same, the sheriff or other ofiS- 
cer having possession thereof, shall apply to the court for 
authority to sell the same, stating the circumstances; and 
the same shall be sold, under the order and direction of the 
court, and the proceeds of such sale shall be liable to the 
judgment obtained upon such attachment, and shall be re- 
tained by the sheriff or other officer to await such judg- 
ment. 

Costs and expenses not chargeable against the ftind, when.— Where 

an attachment against A is levied upon the goods of B, which being perishable 
are sold by the sheriff, and B interpleads in the action and recovers judgment, 
the costs and expenses of the attachment, sale, &c., are not properly charge- 
able against the fund arising from such sale. Haywood v. Hsuxlie, 76 — 384. 



24 

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1 86 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 361. Defendant niay replevy hefofe sale. R. C, c. 7 9 »• 
5. 1777, e. 115,9.28. 

The person owning the property, advertised to be sold 
according to the provisions of this sab-chapter, his agent or 
attorney may, at any time before sale, replevy the same, by 
giving an undertaking, in doable the amoant of the valae 
of the property, with safficieut surety, to the effect that he 
will return the property to the sheriff, or other officer, if 
return thereof be adjudged by the court, and pay all costs 
that may be awarded against him ; and if return of said 
property can not be had, then that he will pay plaintiff the 
value of said property, and all costs and damages that may 
be awarded against him. And upon the execution of this 
undertaking, the sheriff, or other officer, shall deliver said 
property to the person owning the same. 

Form of bond. — A bond payable to th£ plaintiff in an attachment and con- 
ditioned for the appearance of the defendant, &c., is not a*** bail bond" under 
this section, and by executing such a bond the defendant does not acquire m 
right to replevy. Barry v. Sinclair, Phil., 7. 

Sec. 362. Interest in corporations or associations liable to 
attachment. C, C. T., s. 206. 

The rights or shares which the defendant may have in 
the stock of any association or corporation, together with 
the interests and profits thereon, and all other property in 
this state of such defendant, shall be liable to be attached 
and levied on, and sold to satisfy the judgment and execu- 
tion. 

Sec. 363. Attachment f how executed on property incapable 
of manual delivery. C. C. P., s. 207* 

The execution of the attachment upon any such rights, 
shares, or any debts or other property incapable of manual 
delivery to the sheriff, shall be made, by leaving a certified 
copy of the warrant of attachment with the president or 
other head of the association or corporation, or with the sec- 
retary, cashier or managing agent thereof, or with the 
debtor or individual holding such property, with a notice 
showing the property levied on. 



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CLARK'S CODE OF CIVIL PROCEDURE. 1 8/ 

Sec. 364. A garnishee summoned to answer on oath;judg'' 
nient against garnishee. M. C, c. 7, s. 7. 1777, c. 115, 

s. 28. 

When the sheriff or other oiScer shall serve an attach- 
ment on any person supposed to be indebted to, or to have 
any effects of the defendant in the attachment, he shall at 
the same time summon such person as a garnishee in wri- 
ting, to appear at the court to which the attachment shall 
be returnable, or if issued by a justice of the peace, at a 
place and time named in the notice, not exceeding twenty 
days from date of notice, to answer upon oath what he owes 
to the defendant, and what effects of the defendant he hath 
in his hands, and had at the time of serving such attach- 
ment, and what effects or debts of the defendant there are in 
the hands of any other, and what person, to his knowledge 
and belief; and when an attachment shall be served on any 
garnishee in manner aforesaid, it shall be lawful upon his 
appearance and examination to enter up judgment and 
award execution for the plaintiff against such garnishee, 
for all sums of money due to the def^dant from him, and 
for all effects and estates of any kind belonging to the de- 
fendant, in bis possession or custody, for the use of the 
plaintiff, or so much thereof as shall be sufficient to satisfy 
the debt and costs and all charges incident to levying the 
same ; and all goods and effects whatsoever in the hands of 
any garnishee belonging to the defendant, shall be liable to 
satisfy the plaintiff's judgment, and shall be delivered to 
the sheriff or other officer serving the attachment. 

Lien of famishment* — The lien of the garnishment of the maker of note 
begins from the time the summons was served upon him. Parker v. Scott, 
64—118. 

liability of gamisliee. — When one is summoned as a garnishee in an at- 
tachment, and owes a note which is negotiable, he has a right to insist upon 
the production and surrender of the note, or upon an indemnity, as in the case 
of a lost note, before judgment is taken against him upon his garnishment. If 
be does not do so, he is still liable to a dona fide endorsee. Shulen v. Bryson, 
65 — 201. 

Prior to €• €• P« — ^Where an original attachment issued, and the garnishee 
died after service and before the return day of process, his administrator can , 
not be required to answer said garnishment. Tate v. Morehead, 65^81. 



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I88 CLARK'S CODE OF CIVIL PROCEDURE. 

For proceedings against garnishee under the above section (act of 1777) prior 
to 1868, see following cases : Russell v. Hinton, I Mur., 468 ; Freeman y. 
Grist, I D. & B., 217 ; Patton v. Smith, 7 Ired., 438; Myers v. Beeman, 9 
Ired., 116; Houston y. Porter, 10 Ired., 174; Ormond y. Moye, 11 Ired., 
564 ; Tindell v. Wall, Busb., 3 ; Cherry v. Hooper, 8 Jones, 82 ; and Battle's 
Digest, vol. I, pp. 113 — 115, where they are digested. 

See. 365. Proceedings against garnishee failing to appear^ 
B.C.,c.7,s.8. 1777, c. 115, s. 28. 1838, c. 2. 

When any garnishee shall be summoned as aforesaid, 
and shall fail to appear and discover on oath as directed, 
the court, after solemnly calling the garnishee, shall enter 
a conditional judgment against him, and thereupon a no- 
tice shall issue against him returnable to the court having 
jurisdiction, to show cause why final judgment shall not be 
entered against him ; and if, upon due execution thereof, 
such garnishee shall fail to appear at the time and place 
named in the notice, and discover on oath in manner afore- 
said, the court shall confirm said judgment and award exe- 
cution for the plaintiff's whole judgment and costs ; and if, 
upon examination of the garnishee, it shall appear to the 
court that there is any of the defendant's estate in the hands 
of any person who has not been summoned, the courtshall, 
upon motion of the plaintiff, grant a judicial attachment, 
to be levied in the hands of every such person having any 
of the estate of the defendant in his custody or possession, 
who shall appear and answer, and shall be liable as other 
garnishees. 

Sec. 366. Garnishee denying he has any property ; issue to 
be made up. R. C, c. 7, s. 9. 1793, c. 389, s. 2. 

When any garnishee shall deny that he owes to, or has 
in his possession any property of, the defendant, and the 
plaintiff shall on oath suggest to the court the contrary ; or 
when any garnishee shall make such a statement of facts 
that the court can not proceed to give judgment thereon, 
then the court shall order an issue to be made up, which 
shall be tried by a jury, and on their verdict judgment shall 
' be rendered : Provided^ that in a court of a justice of the 
peace, he may try such issue, unless a jury be demanded. 



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CLARK'S CODE OF CIVIL PROCEDURE. 189 

and then proceedings are to be conducted, in all respects, 
as in jury trials before courts of justices of the peace. 

It is unnecessary for the plaintiff to reply to the answer of the garnishee un- 
der oath, where the garnishee admits the possession of the property received 
from the defendant, but sets up title in himself. Cowles v. Oaks, 3 Dev., 96. 

See, 367 • Articles confessed by garnishee, to he valued by 
jury and judgnhent for tfieir value ; in what cases gar^ 
nishee excused. JJ. C, c. 7,«, 11. 1793, c. 389, s* 1. 1794, 
c.424,s. 1. 

When a garnishee shall on oath confess that he has in 
bis hands any property of the defendant of a specific na- 
ture, or is indebted to such defendant by any security or 
assumption for the delivery of any specific article, except 
as hereinafter excepted, then the court shall immediately 
order a jury to be impaneled and sworn to enquire of the 
value of such specific property, and the verdict of the jury 
shall subject such garnishee to the payment of the valua- 
tion, or so much thereof as shall be suflBcient to satisfy the 
debts or damages, and costs to the plaintiff: Provided^ that 
in a court of a justice of the peace, he may try such issue, 
unless a jury be demanded, and then proceedings are to be 
conducted in all respects as injury trials before courts of 
justices of the peace. Provided^ fuTther^ that if such gar- 
nishee shall also state in his answer that said specific prop- 
erty was left, or deposited, in his possession by the defendant 
as a bailment, or that he hath tendered said specific articles 
agreeable to contract, and that they were refused by the de- 
fendant, and that he then was, and always had been, ready 
to deliver the same; or that he had such specific articles at 
the time and place specified in such covenantor agreement 
ready to be delivered, and is still ready to deliver the 
same; and such statement shall be admitted by the 
plaintiff or found by a jury or the court, then in any such 
case, the garnishee shall be exonerated by the delivery of 
such specific articles to the sheriff, who shall proceed as if 
attachment had been originally levied on the property. 



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IQO CLARK S CODE OF CIVIL PROCEDURE. 

Sec, 3G8. Judgement conditional against garnishee, when* 

B. a, c. 7, s. 12. 1794f c. 424, s. 2. 

When any garnishee shall declare in his answer, that the 
money or specific article due by him will become payable 
or deliverable at a future day, and the same shall be ad- 
mitted by the plaintiflF or found by a jury or the court, in 
such cafse conditional judgment shall be entered agains 
the garnishee, and the plaintiff may obtain judgment 
against the defendant for his demand, bi>t shall not take 
final judgment against the garnishee without notice to 
show cause. 

Sec. 369. Certificate of defendants interest to be furnished* 

C. C. P., s. 290. 

Whenever the sheriff or other lawful oflScer with a war- 
rant of attachment or execution, shall apply to any officer 
mentioned in section three hundred and sixty-three, or to 
any debtor or individual, for the purpose of attaching or 
levying on the property of the defendant in such warrant, 
such officer, debtor or individual shall furnish him with a 
certificate under his hand, designating the number of rights 
or shares of the defendant in such association or corporation, 
with any dividend or any incumbrance thereon, or the 
amount and description of the property held by such asso- 
ciation, corporation or individual, for the benefit of, or debt 
owing to the defendant. If such officer, debtor or individual 
refuse to do so, he may be required by the court or judge to 
attend before him, and be examined on oath concerning 
the same, and obedience to such order may be enforced by 
attachment. 
Sec. 370. Judgment, how satisfied. C C. P., s. 209. 

In case judgment be entered for the plaintiff in such 
action, the sheriff shall satisfy the same out of the property 
attached by him, if it shall be sufficient for that purpose : 

(1). By paying over to such plaintiff the proceeds of all 
property sold by him, and of all debts or credits collected by 
him, or so much as shall be necessary to satisfy such judg- 
ment ; 



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CLARK'S CODE OF CIVIL PROCEDURE. 19I 

(2). If any balance remain due, and an execution shall 
have been issued on such judgment, he shall proceed to sell 
under such execution so much of the attached property, 
real or personal, except as provided in sub-division four of 
this section, as may be necessary to satisfy the balance, if 
enough for that purpose shall remain in his hands ; and in 
case of the sale of any rights or shares in the stock of a cor- 
poration or association, the sheriff shall execute to the pur- 
chaser a certificate of sale thereof, and the purchaser shall 
thereupon have all the rights and privileges in respect 
thereto which were had by such defendant ; 

(3). If any of the attached property belonging to the de- 
fendant shall have passed out of the hands of the sheriff 
without having been sold or converted into money, such 
sheriff shall repossess himself of the same, and for that pur- 
pose shall have all the authority which he had to seize the 
same under the attachment: and any person who shall wil- 
fully conceal or withhold such property from the sheriff, 
shall be liable to double damages at the suit of the party 
injured ; 

(4). Until the judgment against the defendant shall be 
paid, the sheriff may proceed to collect the notes and other 
evidences of debt, and the debts that may have been seized 
or attached, under the warrant of attachment, and to pros- 
ecute any bond he may have taken in the course of such 
proceedings, and apply the proceeds thereof to the payment 
of the judgment. 

At the expiration of six months, from the docketing of 
the judgment, the court shall have power upon the petition 
of thfe plaintiff, accompanied by an affidavit setting forth 
fully all the proceedings which have been had by the 
sheriff, since the service of the attachment, the property 
attached, and the disposition thereof, and also the affidavit of 
the sheriff that he has used due diligence, and endeavored 
to collect the evidences of debt in his hands so attached, 
and that there remains uncollected of the same any part or 
portion thereof, to order the sheriff to sell the same upon 



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192 CLARK S CODE OF CIVIL PROCEDURE. 

such terms and in such maDDer as shall be deemed pi open 
Notice of such application shall be given to the defendant 
or to his attorney, if the defendant shall have appeared in 
the action. In case the summons has not been personally 
served on the defendant, the court shall make such rule or 
order, as to service of notice, and time of service, as shall be 
deemed just. When the judgment and all costs of the pro- 
ceedings shall have been paid, the sheriff upon reasonable 
demand shall deliver over to the defendant the residue of 
the attached property, or the proceeds thereof. 

What the sheriff eah sell. — Property seized under an attachment is only a 
legal deposit in the hands of the sheriff to abide the event of the action, and 
when judgment is rendered and execution comes to the sheriff 's hands his power 
to hold is merged into the larger powers acquired by him under the execution. 
Gamble v. Rhyne, 80 — 183. 

The personal property exemption can not be sold under process of attach- 
ment. Com'rs V. Riley, 75 — 144 ; Gamble v. Rhyne, 80—183. 

Jadgrment set aside^ when* — When a judgment has been obtained in an 
attachment against a corporation, sued by a wrong name, upon a fraudulent de- 
mand, and having i^o notice ol the action, such judgment should be set aside, 
and the company allowedlo plead, although the same was known by one name 
as well as another. Deep River Copper Co. v. Martin, 70—300. 

Sec, 371* When action to recover noteSf &c.f of defendant, 
may he prosecuted hy plaintiff in the action in which the 
attachment issued. C. C. P., s. 210. 

The actions herein authorized to be brought by tbe sheriff 
may be prosecuted by the plaintiff, or under his direction, 
upon the delivery by him to the sheriff, of an undertaking 
executed by two sufiScieut sureties, to the effect that the 
plaintiff will indemnify the sheriff from all damages, costs 
and expenses on account thereof, not exceeding two hun- 
dred and fifty dollars in any one action. Such sureties 
shall, in all cases when required by the sheriff, justify by 
making an affidavit that each is a freeholder, and Worth 
double the amount of the penalty of the bond, over and 
above all demands, liabilities and exemptions. 

A warrant of attachment served upon a debtor of the defendant is merely a 
security for the plaintiff *s recovery. It does not subject the garnishee to have 
r judgment taken against him in the pending cause, but only to a separate action 
\ for its recovery. Carmer v. Evans, 80—55. 

See Shulen v. Bryson, cited under § 364, ante. 



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CLARK'S CODE OF CIVIL PROCEDURE. 1 93 

Sec. 372. Bond of plaintiff, how disposed of on Judgment 
for defendant. C. C. P., «. 211. 

If the foreign corporation or the absent, absconding or 
concealed defendant recover judgment against the plaintiff 
in such action, any bond taken upon the issuing of the war- 
rant of attachment, and any bond taken by the sheriff, ex- jL,!- S* 
cept sQch as are mentioned in the preceding section, all the ^ 
proceeds of sales and moneys collected by him, and all the 
property attached remaining in his hands, shall be deliv- 
ered by him to the defendant or to his agent, on request, 
and the warrant shall be discharged and the property re- 
leased. 

Sec. 373. Atttwhment discharged, and property or itspro' 
ceeds returned to the defendant on his appearance in ac" 
tion. C. a P., s. 212. 1870-' 1, c. 166. 

Whenever the defendant shall have appeared in such ac- 
tion, he may apply to the court in which such action is 
pending, or to the judge thereof, for an order to discharge the 
same ; and if the same be granted, all the proceeds of sale, 
and moneys collected in such action, and all the property 
attached remaining in the hands of any officer of the court, 
under any process or order in such action, shall be deliv- 
ered or paid to the defendant or to his agent, and released 
from the attachment And where there is more than one 
defendant, and several property of either of the defendants 
has been seized by virtue of the order of attachment, the 
defendant, whose several property has been seized, may ap- 
ply in like manner for relief. 

Motioil to Tacate, when made. — A motion to dissolve an order of attach- 
ment may be made before the return term of the summons. Palmer v. Bosher, 
71 — 291; Wilson V. Manufacturing Co., 88 — 5. 

Vacated by clerk. — The clerk has jurisdiction to vacate an attachment, not- 
withstanding the act of i87(>-'7i, making the process returnable to term of 
court. Palmer v. Bosher, 71 — 291. 

When racated* — An attachment or other provisional remedy will be va- ' " '^ 
cated without any undertaking by the defendant, if on its face, it appears to V , /-j , J 
have been issued irregularly, or for a cause insufficient in law, or false in fact. // 
Bear V. Cohen, 65— 511. ^ 

Where a defendant moves to vacate an attachment without having served a 
copy of his affidavit, and the plaintiff appears by attorney and does not ask to 
file counter affidavits, the motion may yet be granted. Palmer v. Bosher, 
7a— 371. 

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194 CLARK*S CODE OF CIVIL PROCEDURE. 

Wben not ractted.— An attachment will not be dissolved, if it appear rea- 
sonably necessary to hold the property to protect the plaintiff *s rights till the 
trial. Bruffv. Stems, 81—183. 

Release of Hen bj act of the plalntUT. — A plaintiff, in an attachment lev. 
ied on the property of the debtor, accepting a deed of trust from such debtor 
to all his creditors, and signing an agreement providing for the payment of the 
debts of the debtor pro rata, releases the lien acquired by the levy of the attach- 
ment, and must take his part with the creditors" secured in the deed. Rahily 
v. Stringfellow, 72 — 328 

Defect in affldarit enred* — Where the affidavit was insufficient, and the 
defendant taoved to vacate on affidavits, and the plainfiff then filed counter- 
affidavits, which supplied the facts omitted in the former one, the counter affida- 
vits cured the defects of the original, but could not have been filed, if the de- 
fendant had not moved on affidavits. Brown v. Hawkins, 65—645. 

Wbat Jndgre can racate. — A judge has no authority to vacate attachments, 
except in his own district, (before the law of i876-*7,) but a judge holding a se- 
ries of courts in another district by exchange becomes, during such courts, 
judge of the district for all purposes. Bear v. Cohen, 65 — 511; Myers v. Ham- 
ilton, 65 — 567; Thomas v. Whitehead, 65—637. 

Property delivered to the defendants- Upon vacating the warrant the 
property attached and money collected under ai\y process or order in the action 
shall be delivered to the defendant. Devries v. Summit, 86 — 126. 

Prior to C. C. P. — In an attachment for debt, objections to the sufficiency 
of the affidavit oiibond can only be taken by a plea in abs^lement, after an ap- 
pearance by the defendant. Cherry v. Nelson, 7 Jon., 141. 

^' § 377 po^^* and cases there cited. 

Sec. 374. Undertaking ^of defendant an appearance to diS" 
charge the property. €• C. P., «. 213. 

Upon such application the defendant shall deliver to the 
court an undertaking, executed by two sureties residing in 
this state, approved by such court, to the effect that such 
surety will, on demand, pay to the plaintiff the amount of 
judgment that may be recovered against the defendant in 
the action, not exceeding the sum specified in the under- 
taking, which shall be at least double the amount claimed 
by the plaintiff in his complaint. If it shall appear by 
affidavit, that the property attached be of less value than the 
amount claimed by the plaintiff, the court or judge may 
order the same to be appraised, and the amount of the un- 
dertaking shall then be double the amount so appraised. And 
where there is more than one defendant, and several prop- 
erty of either of the defendants has been seized by virtue of 
the order of attachment, the defendant whose several prop- 
erty has been seized may deliver to the court an undertak- 
ing, in accordance with this section, to the effect that he 



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CLARK S CODE OF CIVIL PROCEDURE. 1 95 

will, on demand, pay to the plaintiff the amount of jadg- 
ment that may be recovered against such defendant. And 
all of this section, applicable to such an undertaking, shall 
be applied thereto. 

Before €• G* P« — Defendants in original attachments may appear and plead 
without giving bail. Stephenson v. Todd, 63 — 368. 

See. 375. Property claimed by third party, may interplead, 
B. C, c. 7,8. 10. 1793, c. 389, b. 3. 

When the property attached shall be claimed by any 
other person, the claimant may interplead, as provided in 
section three hundred and thirty-one. 

Who may interplead* — An attachment having been levied, third parties 
claiming a lien on the property can intervene and make np a collateral issue as 
to the title. But whether the attachment is regular is matter between the 
jiarties to the main action. Blair v. Puryear, 87 — loi. 

The right of an outside claimant to intervene is well settled by precedent. 
Sims V. Goettle, 82—268. 

A stranger to the action has no right to intervene and make himself a party 
thereto, though upon proof of interest in the property attached he may be 
allowed to make up a collateral issue of title. oms v. Warson, 66 — 417. 

Decisions upon tliis section (acts I7O89 Rer. Code, e. 1, s. 10) made 
prior to 1868.— A party claiming title to property seized under an attachment, 
may interplead at any time before final judgment. Dodson v. Bush, i Car. 
Law Rep., 236 ; Evans v. Transportation Co., 5 Jon., 331. 

The ckim of an interpleader to property attached must be a le^al daim ; a 
mere equitabU one will not entitle him to the property attached. No claim can 
be interposed by a third person to a debt attached in the hands of a garnishee, 
as nothing but tangible properly comes within the spirit of the law aUowmg an 
interpleader. But where specific property is levied upon, as the property of an 
absconding debtor, claimants have a light to interpose for the purpose of pro- 
tecting their present enjoyment of it, and preventing any injury that might at- 
tend any removal. Simpson v. Harry, i D. & B., 202. 

The owner of property attached is not obliged to interplead, though he may 
do so for the sake of convenience. A sale under an execution, issuing on a 
judgment on an attachment, only passes the right of the defendant in at- 
tachment. Davis V. Garrett, 3 Ire., 459. 

"When an interplea is filed, the only issue submitted to the jury is as to the 
title to the property levied on. The jury have no right to assess the value of 
the property or damages for its detention or destruction. McLean v. Douglas, 
6 Ire., 233. 

A plaintiff ih a junior attachment can not be allowed to intervene in an at- 
tachment of earlier date for the purpose of contesting the validity of the debt 
therein sued on. Bank v. Spurling, 7 Jon., 398. 

Sec. 376. When tlie sheriff to return warrant, with his 
proceedings thereon. C. C. P., s. 214. 

The sheriff shall return the warrant of attachment, and 
the undertakings provided for in this chapter, with a state- 
ment of his proceedings thereon, at the time and place at 
which it is on its face returnablei and upon, or at any time 



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196 CLARK'S CODE OF CIVIL PROCEDURE. 

after such return, he may obtain from the coart to which 
the same was returnable, a certified copy thereof, which 
shall be held and deemed for the purpose of giving him 
authority, the same as the original, and when the warrant 
shall have been fully executed or discharged, the sheriff 
shall return the same, with his proceedings, to said court. 

Sec* 377* Motiofi to vac€U^ or modify warrant, or increase 
security. 

The defendant, or a person who has acquired a lien upon, 
or interest in, his property after it was attached, may at any 
time before the actual application of the attached property, 
or the proceeds thereof, to the payment of a judgment re- 
covered in the action, apply to the court having jurisdiction 
to vacate or modify the warrant, or to increase the security 
given by the plaintiff, or for one or more of those forms of 
relief, together or in the alternative, as in cases of other pro- 
visional remedies. 

Motion granted* — Where the allegations of the affidavit for attachment are 
disproved, the motion to vacate should be granted. Devries v. Summit, 86 — 126, 

Motion denied* — The court will not surrender property in custodia Ups if 
its detention appear reasonably necessary to protect the right of the plaintiff till 
the trial. Bruff v. Stern, 81—183. 

Amendment of defectire affldayit*— The court has the power to allow the 
amendment of an affidavit upon which a warrant of attachment had issued, al- 
though the former affidavit was wholly insufficient. Brown v. Hawkins, 65 — 645. 

Taoated witliont bond by defendant* — An attachment, or other provisional 
remedy, will be vacated without any undertaking by the defendant, by the judge, 
if on its face it appear to have been issued irregularly, or for a cause insufficient 
m law or false in fact. Bear v. Cohen, 65 — 511. 

What Judge has Jnrisdictlon to yacate* — A judge can not vacate an order 
of attacmnent out of his own district, unless legally assigned to hold the court 
of the dbtrict where it issued. Myers v. Hamilton, 65 — 567 ; Bear v. Cohen, 
65 — 511 ; Morris v. Whitehead, 65^37. 

S^e § 373, ante, and cases there cited. 

Sec. 378. Exception to and justification of sureties. 

The sureties to all undertakings in all proceedings for at- 
tachment may be excepted to, and justified as required in 
an action for claim and delivery. 

•Sp^ § § 324—328, ««/r. 



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CLARK'S CODE OF CIVIL PROCEDURE. 



197 



CHAPTER FIVE. 

AF FOINTHEinr OF RECEIVESS ANB OTHER FBO- 
VISIONAL REMEDIES. 



Section.. 

379. Appointment of receivers. 

380. Property held by trustees. 

381. Judge may punish dlsobe^ 

dienee to order. 



Section. 

QSZ, Judgment for sum admit- 
ted to be due. 
383. Receiver to give security. 



Sec. 379. AppointmetU of receivers* C. C% P*,$» 215, 
1876''7, c. 223. 1879, c. 63. 1881, c. 51. 

A judge of the superior court having authority to grant 
restraining orders and injunctions, as prescribed in title 
nine, ^ub chapter three of this chapter, shall have the like 
jurisdiction in appointing receivers, and all motions to show 
cause shall be returnable as is provided for injunctions. 

A receiver may be appointed — 

(1). Before judgment on the application of either party, 
when he establishes an apparent right to property which is 
the subject of the action, and which is in the possession of 
an adverse party, and the property or its rents and profits, 
are in danger of being lost, or materially injured or im- 
paired ; except in cases where judgment upon failure to 
answer may be had on application to the court ; 

(2). After judgment, to carry the judgment into effect ; 

(3). After judgment, to dispose of the property according 
to the judgment, or to preserve it during the pendency of 
an appeal, or when an execution has been returned unsat- 
isfied, and the judgment debtor refuses to apply his prop- 
erty in satisfaction of the judgment; 

(4). In cases provided in said chapter and by special stat- 
utes, when a corporation has been dissolved, or is insolvent, 
or in imminent danger of insolvency, or has forfeited its 
corporate rights; and in like cases, of the property within 
this state of foreign corporations. Receivers of the prop- 
erty within this state of foreign or other corporations shall 



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198 CLARK'S CODE OF CIVIL PROCEDURE. 

be allowed such commissions as may be fixed by the judge 
appointing them, not exceeding five per cent, on the amount 
received and disbursed by them. 

By whom appointed. — The clerk of the superior court has no power ta 
appoint a receiver. Parks v. Sprinkle, 64—637. 

Under the act of 1877, modified by the act of i879r, motions for the appoint- 
ment of a receiver may be made before the resident judge of the district, or one 
assigned to the district, or one holding the courts thereof by exchange, at the 
option of the mover. Corbin v. Berry, 83 — 27. 

Prior applieatiou* — The prior jurisdiction acquired by the pendency of a 
former action in which an injunction and receivership is sought will exclude 
the interference of the court in another suit of which the principal object is the 
same provisional remedies. Young v. Rollins, 85 — ^485. 

Authority of receiver.— *A receiver appointed, in one case, can not, by vir- 
tue of such appointment, do any act affecting another controversy between the 
parties. Righton v. Pruden, 73—61. 

A party to the action should not be appointed.— The office of receiver 
should not be conferred on a party to the cause. Young t. Rollins, 85 — ^485. 

Property in hands of receirer not sniiject to execotion.— While prop- 
erty is in the hands of a receiver it is not subject to execution, and no right to 
it can be acquired by a sale under execution. It makes no difference if the re- 
ceiver declines to act. The property is still in the custody of the law. Skin- 
ner V. Maxwell, 68 — ^400. 

Becelrer in actions to recover real pnipertjr. — In an action to recover 
possession of land, a defendant may set up an equitable defence, and all per- 
sons interested in such equity should thereupon be made parties, and are entitled 
to have their interests protected by the appointment of a receiver. Ten Broeck 
V. Orchard, 74—409. 

^ A receiver will be appointed, in an action to recover realty, when the plain- 
tiff sets up an apparently good title, which is not sufficiently denied by the an- 
swer, and shows imminent danger of loss by the defendant's insolvency. Deep 
River Co. v. Fox, 4 Ire. Eq., 61 ; Cause v. Perkins, 3 Jones Eq., 177 ; Nesbitt 
V. Turrentine, 83—535; Rollins v. Henry, 77 — 467. 

After a tenant has been wrongfully evicted and a writ of restitution ordered, 
it must be obeyed before the court will entertain a motion to appoint a receiver 
of the premises. Rollins v. Henry, 77—467. 

, Where it appears that the party in possession of a gold mine, ]>ending liti- 
gation for it, is ol doubtful ability to respond in damages, a receiver will be ap- 
pointed to secure the profits. Parker v. Parker, 82 — 165. 

In action of foreclosure. — Where land is sold by deed, and the vendee 
immediately re-conveys by mortgage to secure the purchase money, enters into 
possession, makes improvements, and obtains an injunction to restrain sale 
under the mortgage, the vendee is entitled to have a receiver appointed during 
the litigation. Howes v. Mauney, 66 — 218. 

A receiver may be appointed in an action to foreclose a mortgage, when it is 
alleged that the security is insufficient, and the mortgagor in possession is in- 
solvent, Kerchner v. Fairley. 80—24. 

Where a mortga^r obtains an injunction to restrain the sale of mortgaged 
premises until certain counterclaims are passed upon, the mortgagee is entitled 
to have a receiver appointed to take charge of the property and secure the rents 
and profits, where the same are in danger of being lost. Oldham v. Bank, 
84—304. 

Executor. — When an executor converts his real and personal estate into 
notes and money, so as to lead to a reasonable apprehension that the assets are 
not sufficiently secure in his hands, it becomes the duty of the court, pending 
an action for an account and payment of the assets, to provide, by an order in 



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CLARK'S CODE OF CIVIL PROCEDURE. I99 

the cause, that the executor give bond for the protection of the assets and for 
the performance of the final decree, and upon his failure so to do, to appoint a 
receiver. It is error to appoint a receiver in the first instance. Gray v. Gai- 
ther, 74 — 237. 

Infant's estate* — A receiver may be appointed of an infant's estate, if not 
vested in a trustee. Skinner v. Maxwell, 66—45. 

Whenever the property of the parties is so intermingled that the different in- 
terests can only be ascertained and established under die direction of the court, 
a receiver should be appointed. Ibid. 

Dlssolatlon of partnership* — Where a court orders a dissolution of a part- 
nership, or where it is dissolved by consent and a serious disagreement occurs 
between the partners in settlement, the court will appoint a receiver. Rich- 
ards V. Burman, 65 — 162. 

Tenants in common* — Courts are averse in ordinary cases to the appoint- 
ment of receivers in actions between tenants in common. Vaughn v. Vincent, 
88—116. 

Bispnted ftind* — The right to take under the control of the court a disputed 
fund, Uable to waste if suffered to remain in the hands of the defendant, extends 
also to a plaintiff who takes it from the defendant, and whose possession threatens 
a similar injury to the latter. Horton v. White, 84 — 297. 

A receiver will be appointed^ when.— Where the trustee of the sinking 
fund to pay the debts of a corporation loaned a portion of the money belonging 
thereto without authority to a bankrupt firm of which he was senior member, 
and which soon thereafter became insolvent, these facts constitute sufficient 
grounds for the removal of the trustee and the appointment of a receiver pend- 
mg an investigation of his acts and doingrs. Railroad v. Wilson, 81 — 223. 

Where an administrator sold land to make assets, and it was bought by his 
sister, either for his and their joint benefit, and judgment was rendered against 
her and the sureties on the bond for the purchase money, the administrator, who 
is insolvent, remaining in possession of the land, the sureties are entitled to an 
order restraining the administrator from collecting the purchase money and the 
appointment of a receiver to resell the land. Stenhouse v. Davb, 82 — 432. 

In an action under the landlord and tenant act, carried by appeal to the su- 
perior court, the court has power to appoint a receiver to collect the rents, &c., 
upon an affidavit by the plaintiff (not controverted) that the defendants entered 
into possession as tenants of plaintiff, have held over after expiration of their 
term, are insolvent, and that tne plaintiff has no security for rents. Nesbitt v. 
Turrentine, 83 — 535. 

A rCweiyer will not be appointed^ when.— An order appointing a receiver 
will not be made when the party applying for the same has not established an 
apparent right to the property in litigation, and where it is neither aU«g(ed nor 
shown that there is danger of waste or injury to the property, or loss of r^ots and 
profits by reason of the insolvency of the adverse party in possession. Twitty 
V. Logan, 80—69. 

A receiver will be refused unless there is danger that the property will be 
lost or materially injured. Levenson v. Elson, 88 — 182. 

A receiver will not be appointed, pendente lite^ upon a mere allegation that 
the party has reason to believe the property in dispute will be wdsted or de- 
stroyed. The application in such case must state the grounds of apprehension 
and the judge determines the reasonableness thereof upon the facts found by 
him. Hanna v. Hanna, 89 — . 

AfiidaTits* —Where the defendant in an application for a provisional remedy 
miets the plaintiff's allegations by counter affidavits, the plaintiffs can support 
their original affidavits by others to same effect and in reply to those offered by 
the defendant. Young v. Rollins, 85 — ^485. 

Allowing or refusing additional affidavits after argument begun, on such an 
application, is a matter of discretion in the presiding judge, and not review- 
able. Levenson v. Elson, 88 — 182. 



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200 CLARK'S CODE OF CIVIL PROCEDURE. 

For the fees of an officer pending litigation.— A receiver can not be ap- 
pointed to take the fees of an office. Swcpson v. Turner, 76^115. 

After dlssolntlon of a corporation* — Where a corporation has dissolved, 
and there is a contest as to the rights of different creditors to the assets, there 
being no officers of the corporation, a receiver should be appointdd. Dobson v. 
Simonton, 78 — 63. 

An order appointing a receiver of the extinct corporation, where it has be- 
come extinct by a legislative enactment which transferred its powers and prop- 
erty to a new corporation, can not properly be made except in a proceeding to 
which its successor or substitute is a party. Young v. Rollins, 85 — 485. 

In supplementary proceedings* — In supplementary proceedings, if the 
judgment debtor dies before the appointment of a receiver is filed in the office 
of the clerk of the superior court, the property and effects of such judgment 
debtor do not vest in the receiver, nor has the judgment creditor any lien as 
against the administrator. Rankin v. Minor, 72 — ^424. 

In regard to the appointment by the court of receivers of the property of the 
judgment debtor in cases of supplementary proceedings, see § § 494 — 497. po^^* 

Order not TOld* — An order appointing a receiver is not void by reason of 
an omission of the court to require adequate security. Nesbitt v. Turrentine, 
83—535. 

Action by recelrer. — ^A receiver of an insolvent corporation, appointed by 
the circuit court of the United States, can not bring an action in the courts of 
this state, in his own name, to recover the property of such corporation. Such 
action must be in the name of the real owner. Battle v. Davis, 66 — 252. 

Contra, It seems that a trustee of any express trust may bring an action in 
his own-name. See § 177, anUy and cases there cited, especially Rankin v. 
Allison, 64—673; Biggs V.Williams, 66 — 427; Mebanev. Meb&ne, 66 — 334; Set- 
zer V. Lewis, 69—133; Grant v. Bell, 87 — 34. 

Sec. 380. Property held by trvstees. C. C* P., «. 215. 

When it is admitted by the pleading or examination of 
a party that he has in his possession, oiwunder his control, 
any money or other thing capable of delivery, which, being 
the subject of the litigation, is held by him as trustee for 
another party, or which belongs or is due to another party, 
the judge may order the same to be deposited in court, or 
delivered to such party, with or without security, subject to 
the further direction of the judge. 

Sec. 381. Judge may punish disobedience to order. C. C. 
P., s. 215. 

Whenever, in the exercise of his authority, a judge shall 
have ordered the deposit, delivery or conveyance of money 
or other property, and the order is disobeyed, the judge, be- 
sides punishing the disobedience as for contempt, may make 
an order requiring the sherifif to take the money or property 
and deposit, deliver or convey it, in conformity with the 
direction of the judge. 



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CLARK*S CODE OF CIVIL PROCEDURE. 201 

Sec. 382. Judgment for gum admitted to be due. C. C. P., 
s. 215* 

When the answer of the defendant expressly, or by not 
denying, admits part of the plaintiff's claim to be just, the 
judge, on motion, may order such defendant to satisfy that 
part of the claim, and may enforce the order as it enforces 
a judgment or provisional remedy. 

Sec. 383% Mecelver to give security % 

A receiver appointed in an action or special proceeding 
must, before entering upon his duties, execute and file with 
the clerk of the court wherein .the action is pending, an un^ 
dertaking payable to the adverse party with at least two.suf* 
ficient sureties in a penalty fixed by the judge or justices, 
making the appointment, conditioned for the faithful dis- 
charge of his duties as receiver. And the judge or justices, 
having jurisdiction thereof, may at at any time remove the 
receiver, or direct him to give a new undertaking, with new 
sureties with the like condition. But this section does not 
apply to a case where special provision is made by law for 
the security to be given by a receiver, nor for increasing the 
same, nor for removing a receiver. 

Liabilities ofsareUes of clerk appointed receiren— The sureties upon 
the bond of a clerk of the superior court are not liable for funds whidi came into 
his hands as receiver^ and over which the court had acquired no control. Rogers 
V. Odom, 86—432. 

But where the clerk is appointed receiver under the statute authorizing the 
court to commit the estate of an infant to some discreet person, the bond of the 
clerk is responsible for the fund. Ibid, 

Default mast be ascertained before snit against sareiles.— A receiver 
and his surety can not be sued on the bond for an alleged breach of his trust be-> 
fore a default is ascertained. The proper practice is to apply to the court for a 
rule on the receiver to render his account. Bank v. Creditors, 86—323. 

Leaye to sae sareties^ when grranted*^' Where the receiver's default is 

manifest, and he fails to comply with the order of the court in respect to the 
fund, it is a breach of the bond upon which suit may be brought by leave of the 
court. Bank v. Creditors, 86—323. 

Where a receiver is alleged to have committed a breach of trust, the party 
complaining must first obtam a rule requiring him to render an account, and if 
default be found apply to the court for leave to sue his bond. In this case the 
refusal of the motion for judgment against the bond was proper. Atkinson v. 
Smith, 89 — . 



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202 



CLARK S CODE OF CIVIL PROCEDURE. 



TITLE X. 

OF THE TRIAL AND JXTDOMEIIT IN CIVIL 
ACTIONS. 

Chap. I. Judgment upon Failure to Answer. 
II. Issues and the Mode of Trial. 

III. Trial by Jury. 

IV. Trial by Court. 
V. Trial by Referee. 

VI. The Manner of Entering Judgment. 



CHAPTER ONE. 



JXTDOMENT UPON FAILT7BE TO ANSWER. 



Skction. 

384. Judgment defined. 

385. Judgment by default final, 

in what cases. 

386. In all dther actions upon 

failure to answer, judg- 
ment by default and in- 
quiry. 

387. Judgment against infants in 

certain cases validated. 



Skction. 

388. Judgment on frivolous de- 

murrer, answer or reply. 

389. Provisions of this clmpter 

applicable to courts of jus- 
tices of the peace. 

390. In actions to recover real 

property or the possession 
thereof. 



Sec, 384. Judgment defined, ۥ C P., s. 216, 

A judgment is either interlocutory, or the final determi- 
nation of the rights of the parties in the action. 

Presnmed to be correct.— Judgments of a court in a case properly consti- 
tuted before it, and where it has jurisdiction of the parties and the subject mat- 
ter of controversy, are deemed to be valid and will be upheld until impeached by 
a direct proceeding for that purpose. Morris v. Gentry, 89 — ; State v. 
Lanier, 89 — . 

Bights of third parties, if rerersed.— Although such judgments may 
afterwards be reversed, the rights of third persons honestly acquired thereunder 
will be |)rotected ; but otherwise, where such persons have knowledge of any 
irregularity or fraud in procuring their rendition. Morris v. Gentry, 8g — . 



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CLARK'S CODE OF CIVIL PROCEDURE. 203 

Serrice of gmnuiOllS presamed* — The law presumes that a party to an ac- 
tion has notice thereof and of its nature, but the contrary may be shown in a 
proper proceeding for that purpose. Morris v. Gentry, 89 — . 

Judgment against plaintiff for costs. — A plaintiff can not abandon the 
averments of his complaint, and fall back upon a collateral statement of facts set 
out in the answer. The proper course is to ask leave to amend the complaint 
and thereby present the point of law desired. So that where the complaint does 
not show a cause ot action, although the defendant does not take advantage of it 
by demurrer or motion to dismiss, the court, upon its appearing, will direct a 
judgment to be entered that the defendant go without day and recover cost. 
Rand v. Bank, 77—152. 

In action to recorer real properly.— Damages, up to the time of trial, 
are recoverable in an action of ejectment. Whisenhunt v. Jones, 78 — 361. 

If the jury find that the plaintiff is entitled to the land, but do not find any 
wrongful act done to it by the defendant, the plaintiff can not recover damages 
or costs. Clarke v. Wagner, 78 — 367. 

Jndgment nan obstante veredicto* — A judgment m?^ obstante veredicto 
is granted in cases where the plea confesses a cause of action and the matter re- 
lied on in avoidance is not sufficient. Rowland v. Windley, 82 — 131 ; Ward v. 
Phillips, 89—. 

Judgment not a contract* — A jud^ent is not a contract. Distinction be- 
tween them discussed. McDonald v. Dickson, 87 — 404. 

Form of Jndgment.~An alternative judgment is bad. Mitchell v. Hen- 
derson, 63 — 643; Dunn V. Barnes, 73—273; State v. Perkins, 82 — 682. 

Judgment on a gold contract can only be given by reducing the gold value 
to currency, and giving judgment for that amount of money. Garrett v. Smith, 
64—93; Brown v. Foust, 64—672; Gibson v. Grover, 63 — 10; Dunn v. Barnes, 
73—273. 

Under the Code, the courts having jurisdiction of legal and equitable rights, 
are required to frame their judgments, so as to determine all the rights of the 
parties. Lea v. Pearce, 68 — 76; Hutchinson v. Smith, 68 — 354. 

Against president of a corporation. — A judgment against one as presi* 
dent of a corporation does not effect the property of the corporation. David- 
son V. Alexander, 84 — 621. 

Tacation or medication of interlocutory decrees and orders.— An in- 

terlocutory decree may be modified or rescinded during the pendency of the 
suit, upon sufficient grounds Shown to meet the justice and equity of the case. 
Worth V. Gray, 6 Tones' Eq., 4; Ashe v. Moore, 2 Mur., 483; Shinn v. Smith, 
64—93; Miller v. Justice, 86—26; Welch v. Kmsland, 89 — . 

Note. — For former practice see Battles' Digest, vol. 2, pp. 791 — 802. 

Sec. 385. Judgment by default finai, in what cases. C. C P., 
8.217. 1870-1% c. 42. 

Judgment by default final may be had on failure of defend* 
ant to answer, as follows : 

(1). Where complaint sets forth one or more causes of 
action, each consisting of the breach of an express or im- 
plied contract to pay, absolutely or upon a contingenoj, a 
sum or sums of money fixed by the terms of the contract, 
or capable of being ascertained therefrom by computation. 
Upon proof of personal service of summons, or of service of 
summons by publication, on one or more of the defendants. 



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204 CLARK S CODE OF CIVIL PROCEDURE. 

and upon the complaint being verified, judgment Bhall be 
entered at the return term for the amount mentioned in the 
complaint, against the defendant or defendants, or against 
one or more of several defendants, in the cases provided in 
section two hundred and twenty-two. 

(2). Where the defendant, by his answer in such action, 
shall not deny the plaintiff's claim, but shall set up a coun- 
terclaim, amounting to less than the plaintiff's claim, judg- 
ment «iay be had by the plaintiff for the excess of said 
clitim over the said counterclaim, in like manner in any 
such action, upon the plaintiff's filing with the court a 
statement admitting such counterclaim, which statement 
shall be annexed to and be a part of the judgment-roll. 

(3). In actions where the service of the summons was by 
publication, the plaintiff may, in like manner, apply for 
judgment, and the court must thereupon require proof to 
be made of the demand mentioned in the complaint, and if 
the defendant be not a resident of the state, must require 
the plaintiff or his agent to be examined on oath respect- 
ing any payments that have been made to the plaintiff, or 
to any one for his use on account of such demand, and may 
render judgment for the amount which he is entitled to re- 
cover. Before rendering judgment the court may in its dis- 
cretion, requite the plaintiff to cause to be filed satisfactory 
security, to abide the order of the court, touching the resti- 
tution of any estate or effects which may be directed by 
such judgment to be transferred or delivered, or the resti- 
tution of any money that may be collected under and by vir- 
tue of said judgment, in case the defendant or his represent- 
atives shall apply and be admitted to defend the dtction, and 
shall succeed in such defense. 

Notice* — I'he five days* notice required is not now necessary upon a motion 
made in term time, as the parties, through their counsel, must take notice at 
their peril, of all motions and steps in the cause at any term when the same is 
triable. Clayton v. Jones, 68 — ^497 ; University v. Lassiter. 83 — 38. 

Presumption of notice of a motion does not apply to proceedings in the pro- 
bate court. Blue v. Blue, 79—69. 
/ ^ A defendant, served with summons in the action, is fixed with notice of $k 
^ judgment by default taken therein. McDaniel v. Watkins, 76 — 399. 



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CLARK'S CODE OF CIVIL PROCEDURE. 205 

Presmned ta be eorrect. — ^Verdicts and judgments are presumed to be cor- 
rect until the contrary be shown. State v. Lanier, 89 — ; Morris v. Gentry, 
89-. 

Failure to t«ke Judgment by default.— A failure to take a judgment by 
default as soon as it is allowable, does not work a discontinuance. University 
v: Lassiter, 83 — 38. 

In an aCtien for money OOly* — A judgment by default, in an action for 
money only, is regular when the.defendant has accepted service and failed to 
answer. Walton v. Walton, 80 — 26. 

Judgment final maybe rendered in an action for the recovery of money where 
a specific sum is contracted to be paid, where the complaint is sworn to and no 
answer filed, Rogers v. Moore, 86 — 85 ; Wynne v. Prairie, 86 — 73. 

Specialty sufficient complaint, if not oljjected to.— Filing the specialty 
is a sufficient complaint, if objection is not taken before judgment. Vick v. 
Pope. 81—22; Leach V. R. R., 65—486. 

Proof need not be made before the derk.— By the act suspending the 
Code, a judgment by default rendered by the superior court in term time on a 
former judgment, is regular, without proof being made before the clerk. Mabry 
V. Erwin, 78 — 45. 

Clerk must ascertain amount, when. — Where the complaint is not sworn 
to, and is for property sold and money lent on open account, the clerk must as- 
certain the amount which the plaintiff is entitled to recover. Oales v. Gray, 
66—442 ; Sutton V. McMillan, 72 — 102. 

Damagrra assessed by court, when. — After a judgment by default on a con- 
stable's bond, the plaintiff must prove the loss sustained by reason of the de- 
fendant's negligence, in all particulars, in order that the court may assess the 
damages resulting therefrom. Parker v. House, 66 — 374. 

Assessed by the courts a referee, or a Jury.- If the demand for judg- 
ment in the complaint is for unliquidated damages, and judgment by default 
is taken for a sum certain, it is irregular. The damages should be first ascer- 
tained, either by the court, a referee, or a jury. Oates v. Gray, 66—442 ; 
AVhite V. Snow, 71—232. 

The court may either pass upon the facts or refer them to a referee or a jury. 
Dunn V. Barnes, 73 — 273. 

In an action on contract for the recovery of money only, the clerk, upon 
failure of defendant to answer in the specified time, shall enter up for the 
amount specified in the complaint, if the complaint be verified by oath ; and 
where it is for the specific properly with damages for withholding, a jury may 
be called in to ascertain the damages. Price v. Cox, 83 — 261. 

Sec, S86. In tUl other actions upon failure to afiswer,Judg' 
niefU by default and inquiry* 

In all other actions, except those mentioned in the prece- 
ding section, when the defendant shall fail to answer, and 
upon a like proof, judgment by default and inquiry may be 
had at the return term, and inquiry shall be executed at 
the next succeeiding term. If the taking of an intricate or 
long account be necessary to execute properly the inquiry, 
the court, at the return term, may order the ticcount to be 
taken by the clerk of the court, or some other fit person, 
and the referee shall make his report at the next succeed- 



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206 CLARK'S CODE OF CIVIL PROCEDURE. 

ing term; in all other cases, the iDquiry shall be executed 
by a jury, unless by consent the court is to try the facts as 
well as the law. 

Inquiry necessary^ when* — Upon a default in an action which sounds in 
damages, the judgmept is necessarily i nterlocuto ry. Hartsfield v. Jones, 4 
Jones, 309. 

Defendants in possession of real estate, in aii action for its recovery, who do 
not file bond before answering as provided by acts of i869-'70, chapter 195, 
may have judgment entered against them by default, and damages ascertained 
by reference or otherwise. Harkey v. Houston, 65 — 137. 

In an action for goods sold or services rendered, or the like, even though the 
complaint be verified and no answer filed, the judgment is by default and in- 
quiry, as under the practice prior to the C. C. P. Rogers v. Moore. 86-— 35 ; 
Wynne v. Prairie, 80—73. 

See cases cited under preceding section. For practice under former system, 
see Battle's Digest, vol. 2, pp. 791 — 794, sparsim. 

Effect of jadgment by defaalt and inqolry.— A judgment by default and 
inquiry admits the cause of action and plaintiffs are entitled to nominal damages 
without introducing any proof. But in seeking substantial damages thev must 
prove the delivery of each article, and the value thereof. Parker v. Smitn, 64 — 
291. 

Quere, — How are judgments by default, now allowed by law, and the amounts 
thereof ascertained ? Is it in the manner prescribed in § 385, an/e^ or is it by 
the old mode of a jury and a writ of inquiry ? Sutton v. McMillan, 72 — 102. 

Failure to take Judgment by default.~A failure to take judgment by de- 
fault does not work a discontinuance. University v. Lassiter, 83 — 38. 

Sec, 387* Judgtnent against infants in certain cases vol-' 
idated. 1879, c. 257. 1880, c. 23. 

In any and all civil actions and special proceedings pend- 
ing on the fourteenth day of March, one thousand eight 
hundred and seventy -nine, or theretofore deiermined, in any 
of the courts, wherein any or all of the defendants were in- 
fants, idiots, lunatics or persons non compos mentis^ on whom 
there was no personal service of the summons, the proceed- 
ings, actions, decrees and judgments taken, had and made 
by such courts in such civil actions and special proceedings 
shall be valid, effectual and binding against and upon such 
infants, idiots, lunatics and persons non compos mentis, and 
their rights and estates in like manner, as if they had been 
personally served with a summons therein : Provided, that 
this section shall not have the effect, nor be construed, to 
prevent any of the proceedings, actions, judgments or de- 
crees hereby rendered regular and confirmed, from being 
impeached and set aside for fraud. 



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CLARK'S CODE OF CIVIL PROCEDURE. 207 

Where proceedings were irregular and void because process was not served 
upon the husband of the feme defendant and for other irregularities, this statute 
does not validate it as to her, and the court will not construe it as validating the 
proceedings as against infant co-defendants when not valid against the adult de- 
fendant. Gully V. Mac}% 86 — 721. 

Sec. S88. Judgment on frivoions demurrer, answer or 
reply. C. C. P., 8. 218. ISTO-'l, c. 42. 

If a demurrer, answer or reply be frivolous, the party 
prejudiced thereby may apply to the court, or to the judge 
thereof, for judgment thereon, and judgment may be given 
accordingly. 

Notice* — The five days notice is now dispensed with, since the motion must 
be made in term time. Clayton v. Jones, 68 — 497 ; University v. Lassiter, 
83-38. 

An answer will not be held friTolons, unless palpably so. — The court 
will not readily decide an answer to be frivolous which is intended to raise a 
serious question. Erwin v, Lowery, 64 — 231; Swepson v. Harvey, 66 — 436; 
Bank v. Charlotte, 75—45 ; Womble v. Fraps, 77 — 198 ; Hull v. Carter, 83 — 
249 ; Boone v. Hardie, 83—470. 

Frlrolons answer* — A frivolous answer is one which is manifestly imper- 
tinent, alleging matters which do not affect the plaintiff's right to recover. 
Flack V. Dawson, 6g — 42; Holmes v. Godwin, 69--467; Schchan v, Malone, 
71 — 440; Com'rs V. Piercy, 72 — 181; Dail v. Harper, 83 — 4; Brogden v. 
Henry, 83 — 274. 

Frirolous demnrrer* — A demurrer which raises no serious question of law 
is frivolous. Dunn v. Barnes, 73 — 273; Johnston v. Pate, 83 — no; Hurst v. 
Addington, 84 — 143. 

If demorrer is held friroloas. — When a demurrer is stricken out as frivo- 
lous, the plaintiff is entitled to judgment. Cowan v. Baird, 77—201. 

Judgment non obstante veredicto. — Where the answer admits the cause 
of action and the matter relied on in avoidance is insufficient, judgment should be 
given in favor of the plaintiff nonobstanU veredicto, Rowland v. Windley, 82 — 
£31; Ward v. Phillips, 89—. 

Motion for {ndgment dnring trial.— A motion to non-suit a plaintiff in 
the midst of a trial, on the ground that his evidence does not make out a case 
— the defendant's counsel at the time stating that ** if his Honor should overrule 
the motion, he had evidence to offer, showing title in himself," is an unfair and 
loose mode of practice, and should not be tolerated. Stiih v. Lookabill, 71 — 25. 

Motion for J ndgment upon complaint and answer* —It is irregular for 
the plaintiff to move for judgment upon complaint and answer. If he admits 
the allegations of the answer, his proper course is to demur. Baldwin v. York, 
71 — 463; Chastain v. Martin, 81 — 51. 

See § 247, ante, and cases cited thereunder. 

Sec. 389. This chapter applicable to courts of justices of the 
peace. 

This chapter shall apply, as near as may be, to proceed- 
ings in courts of justices of the peace. 



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208 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec* 390. In actions to recover real j^ropertp or the posses-^ 
sion thereof. 1869-^70, c. 193, s. 4. 

In all actions in the superior court for the recovery of 
real property, or for the possession thereof, upon failure of 
the defendant to file the undertaking required by section two 
hundred and thirty-seven, or upon failure of sureties to jus- 
tisfyas provided in section five hundred and sixty, the 
plaintiff shall have judgment for the relief demanded in 
the complaint, unless the defendant is excused from giving 
said undertaking before answering. 

Bond Is for damages as well as costs and niaj be increased bjr order 

of the court* — The bond required of defendants is not for costs only, but secures 
the plaintiff such damages as he may sustain in the loss of rents, and sembU, 
that the bond may be increased in the discretion of the court if the defendant 
shows any disposition to delay a trial. Rollins v. Henry, 'l'j—\(yj. 

Sammarj Judgment agrainst sureties.— Upon judgment being rendered 
against the defendant in an action to recover land, a summary judgment can be 
entered up against the sureties on his bond. Rollins s. Henry, 84 — 569. 

Defendants in forma pauperis. — In an action for recovery of land, where 
the defendant filed his amdavit alleging his inability to give the bond required 
by § 237, and counsel certified that the plaintiff was not entitled to recover, it 
'is error to require the defendant to give bond before being allowed to defend 
the action. Jones v. Fortune, 69 — 322. 

If the defendant is allowed to defend in forma pauperis this does not exempt 
him from paying costs if judgment be rendered against him. nor prevent him 
from recovering cost. Lambert v, Kinnery, 74 — 348 j Justice v. Eddings^ 
75—581. 

See § 237, ante, and cases there cited. 



CHAPTER TWO. 
ISSUES AND THE MODE OF TRIAL 



Section. | Section. 

391. iQsues defined ; different 398. Issues, how tried. 

kinds of issuea 

392. Ismie of law. 

393. Issue of fact. 

394. On issues of both law and 



399. Other issues to be tried \>y 
the court or Judge. 

400. Issues of fact, when to be 
tried. 



fact, issue of law to be tried 401. Trial may be postponed by 
first. I clerk or Judge before the 

895. When and by whom issues I trial term on notice. 

to be made up. 1 402. Trial postponed by Judge in 

396. Issues should be in concise ! term time, when. 

and direct terms. 403. Order of business. 

397. Trial defined. 1 



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CLARK'S CODE OF CIVIL PROCEDURE. 209 

8ec» 391. Issues defined; different kinds of isaues. €• €• 
P,, 8. 219. 

Issues arise upon the pleadings, when a material fact or 
conclusion of law is maintained by the one party and con** 
troverted by the other. They are of two kinds : 

(1). Of law; and 

(2). Of fact. 

Issnes of fact and qaestlons of fact.—*' Issues of fact" are such matters 
of fact as are put in issue by the pleadings, and a decision of which would be 
final, and conclude the parties upon the matters in controventy. Heilig v. 
Stokes. 63 — 612 ; Armfield v. Brown, 70^27 ; Klutts v. McKenzie, 65 — 102. 

Distinguished from questions of fact, which arise incidentally upon motions 
and exceptions. Foushee v. Pattershall, 67 — 453 ; Clcgg v. White Soap-Stone 
Co., 66 — 391 ; Keener v. Finger, 70 — 35. 

Note. — See dissenting opinion of Rodman, J., in Green v. Castleberry, 
70—20, and Keener v. Finger, 70—35. So much of the discussion therein, 
however, as refers to the jurisdiction of the supreme court to review issues of 
fact has become immaterial by the amendment 10 the constitution. 

Defectire tssaes* — If the issues framed by the court are defective or insuf- 
ficient to develop the whole case, the party prejudiced thereby must lay the 
foundation for an appeal, by suggesting the proper corrections at the time. 
Moore v. Hill, 85—218. 

A party who neglects to tender such issues ns he deems essential to develop 
his case can not assign as error on appeal the failure of the court to submit sucn 
issues. Alexander v. Robinson, 85 — 275. 

Alternative propositions are objectionable as issues. Coble v. Coble, 82 — 339. 

'S^^ § § 395 AQcl 409, /^f/, and cases cited. 

Roles of supreme eovri adopted Jane term, 1871.— These rules are 
construed. School Committee v. Kesler, 66—323. 

See. 392. Issue of law. C. C. P., s. 220. 

An issue of law arises upon a demurrer to the complaint, 
answer or reply, or to some part thereof. 

When a demurrer is filed, it is tiie duty of the judge to decide the issues of 
law raised thereby, and the entry "judgment pra con/essv" will be treated as 
an idle expression, and stricken from the record. Gibson v. Smith, 65 — 103. 

An issue of law can be raised only by demurrer. Andrews v. Pritchett, 66^ 
387. 

See. 393. Issue of fact. C. C. P., s. 221. 

An issue of fact arises — 

(1). Upon a material allegation in the complaint contro- 
verted by the answer ; or, 

(2). Upon new matter in the answer, controverted by the 
reply ; or, 

(3). Upon new matter in the reply, except an issue of law 
is joined thereon. 

27 



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2IO CLARK'S CODE OF CIVIL PROCEDURE. 



Most be raised by the pleadings. — The issues are raised by the pleadings, 
and it is not error to refuse to submit an issue not made by them. McElwee v. 
Black well, 82—415 ; Miller v. Miller. 89—. 

What are proper Issaes. — It is not every matter averred on one side and 
denied on the other that in a legal sense is an issue, but only such as are neces' 
sary to dispose of the controversy. Cedar Falls Co. v. Wallace, 83 — 225. 

In an action for goods sold and delivered, where there is an answer denying 
sale and also setting up a compromise, an issue may be submitted to the jury as 
to the validity of the debt unaffected by the compromise. Fickey v. Merrimon, 

79—585. 

See § § 395 and 409, post, and cases cited. 

The rlgrht to open and conclnde. — Although the afErmative of the issues 
raised by the pleadings is upon the defendant, yet, if the affirmative of any of 
the issues submitted to the jury is upon the plaintiff, he is entitled to open and 
conclude, if the defendant introduces evidence. Churchill v. Lee, 77 — 341; 
HofT V. Crafton, 79—592. 

So that, when the plaintiff is nut entitled to recover, unless he establishes 
the bona fide ownership of certam property in controversy, he can not be de- 
prived of his right to open and conclude, by reason of the fact that the defend- 
ant alleges that the plaintiff's title is fraudulent and void and insists that that 
raises an affirmative issue on his part. Churchill v. Lee, 77 — 341. 

Where the affirmative of all the issues is upon the defendant to sustain, he 
has the right to open and conclude. McKae v. Lawrence, 75 — 289. 

The rule, that a party alleging an affirmative is bound to prove it, means the 
affirmative of any matter, the truth of which is essential to his case. Hudson 
V. Wetherington, 79 — 3. 

On the issue, ** Did the plaintifiF's testator pay for or purchase the note in 
suit?" the right to open and conclude is with the plaintiff. Hudtctn v. Weth- 
erington, 79 — 3 ; Neal V. Fesperman, i Jon., 446. 

The parly who asserts the affirmative of an issue has the right to open and 
conclude the argument. A defendant who admits the execution of a note sued 
on, but pleads payment, has the onus of proving it. and hence the right to open 
and conclude. Love v. Dickerson, 85 — 5. 

In special proceeding^. — In a special proceeding, when a demurrer is filed 
to a complaint, an issue of law is raised, which should be certified to the judge 
at chambers ; but when an answer is filed which raises issues of both law and 
fact, the entire case should be transferred to the civil issue docket to be tried 
at the term. Jones v. Hemphill^ 77 — 42 ; Brandon v. Phelps, 77 — 44 ; Mc- 
Bryde v. Patterson, 73—478. See § 255, ante. 

Sec. 394* On issues of bath law and fact, issue of law to be 
tried first. C. C. B., s. 222. 

Issues both of law and of fact may arise upon different 
parts of the pleadings in the same action. In such cases 
the issues of law must be first tried, unless the court other- 
wise direct. 

Postponement till vacation. — Parties may, by consent, postpone a trial of 
issues of law to vacation. Harrell v. Peebles, 79 — 26. 

Issue of law^ or settlement pleaded, disposed of first.— Where the stat- 
ute of limitations is pleaded, or a settlement in bar, it should be passed upon 
as a preliminary question before a trial by referee or otherwise on the merits. 
Cox v. Cox, 84 — 139 ; Com'rs v. Magnin, 85 — 114; Sloan v. McMahon, 85—296; 
Neal v. Becknall, 85 — 299 ; Railroad v. Morrison, 82 — 141 ; Douglas v. Cald- 
well, 64 — 372 ; Com'rs v. Raleigh, 88 — 120. This course was pursued in Bar- 
ham V. Lomax, 73 — 76, but without adjudication on the point. 



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CLARK'S CODE OF CIVIL PROCEDURE. 211 

Sec. 395. When and by whom issues to be made up. 

The issues arising upon the pleadings, material to be 

tried, shall be made up by the attorneys appearing in the 

action, and reduced to writing, or by the judge presiding, 

before or during the trial. 

Issues shoald be made ap before the trial. — By the common law the par- 
ties made up the issue by their pleadings. Tlve Code adopts the equity procedure, 
when the issues are not ehminated by the proceedings, but must be made by 
the court. The consumption of lime in wrangling over the issues is a serious 
inconvenience, to remedy which the rules of the supreme court upon the subject 
were adopted. The only alteration intended to be made by these was to have 
the issues made up beforehand^ and no appeal lies from a ruling of the judge in 
r^ard to them, any more than on the adinissibility of testimony. School Com- 
mittee V. Kesler, 66 — 323. 

Issaes most be tendered by coanseK — When a proper issue is not tendered 
in the court below, it can not be complained of, on an appeal, that the court 
did not frame it. Kidder v. Mcllhenny, 81 — 123; Curtis v. Cash, 84 — 41; 
Bryant v. Fisher, 85 — 71. 

What issaes should be sabmitted.— When issues are made up by the plead- 
ings, parties have a right to have those material to the determmation of the 
case submitted to a jury; and for the presiding judge to withdraw such materia] 
issues and substitute others in their place is error. Albright v. Mitchell, 70 — ^445. 

In an action for goods sold and delivered, if the answer denies the sale and 
also sets up a compromise, an issue may be submitted as to the validity of the 
debt unaffected by the compromise. Fickey v. Merrimon, 79 — 585. 

Not every matter averred on one side and denied on the other is an issue 
to be submitted to the jury, but only such as are necessary to dispose of the 
controversy. Cedar Falls Co. v. Wallace, 83 — 225. 

In an action for damages for the conversion of personal property the issues 
are properly restricted to an inquiry into plaintiff's title, the act of conversion 
and the injury. Rhea v. Deaver, 85 — 337. 

Where to a suit upon a note the defense was that the consideration was for 
money won at unlawful gaming, the court properly submitted to the jury the 
single issue as to the alleged illegal consideration. Carrington v. Allen, 87 

—354. 

Only such issues as arise upon the pleadings should be submitted to the jury, 
and it is the duly of the court to determine what they are. The law and prac- 
tice in reference to pleading and framing issues, discussed by Merrimon, J. 
Miller V. Miller, 89—. 

What issaes should not be SSbmitted.— In a case involving complicated 
accounts the parties are not entitled to have the facts passed upon by a jury. 
Under the C. C. P., it is referred to a referee who gives his judgment upon 
both facts and law. Klutts v. McKensie, 65 — 103; Martin v. Milbourn, 66^321. 

It is not error to refuse to submit an issue to the jury when there is no evi- 
dence to support it. Best v. Frederick, 84 — 176. 

Alternative issues should not be submitted. Coble v. Coble, 82 — 339. 

The court should not submit to the jury such issues as are directed to mere 
details of evidence. Grant v. Bell, 87 — 34. 

Nor issues on points not decisive of the case. Henry v. Rich, 64 — 379. 

Where uo issae is eTolred bjr the pleadings.— Where upon an appeal the 
contending allegations of the parties in the court below do not appear to have 
evolved any issue, a venire de novo will be granted in order that there may be a 
repleader. Brown v. Cooper, 85 — 477. 

Where the issaes do not eorer all the matters in controrersy.— When 

the issues submitted do not cover the whole merits of a case, the court will retain 



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212 CLARK S CODE OF CIVIL PROCEDURE. 

the cause and send down other issues to be passed upon by the jury in the court 
below. Allen v. Baker, 86—91. 

All the issues of law and fact should be tried and determined and the case not 
settled by piecemeal. Briggs v. Smith, 83 — 306; Kirby v. Mills, 78 — 124. 

•^^ § § 391 » 393» ^^^t *nd § 409, post, and cases cited. 

Sec. 396. Issues should be in concise and direct termsm 
Bule IV of Sap. Ct.y June TerMy 1871. 

Issues should be frame<} in concise and direct terms, and 
prolixity and confusion must be avoided, by not having 
too many issues. 

Directorj* — The rule prescribed by the supreme court (80—495) for the prei>- 
aration of issues in the trial of causes is merely directory. Wittkowski v. Watkins, 
84 — ^457; School Committee v. Kesler, 66—323. 

Concise and direct* — Alternative propositions are objectionable as issues. 
Coble V. Coble, 82 — 339. 

Sec. 397. TricU defined. C. C. r., s. 223. 

A trial is the judicial examination of the issues between 
the parties, whether they be issues of law or of fact. 

Sec. 398. Issues, how tried. C. C. B., s. 224. 

An issue of law must be tried by the judge or court, un- 
less it be referred. An issue of fact must be tried by a jury, 
unless a trial by jury be waived, or a reference be ordered. 

Kigllt of trial by Jonr. — In all actions under the Code, when l^al rights 
are invoked, and issues of fact are joined by the pleadings, the plaintiff is enti- 
tied to a trial by jury, and can not be deprived of this right, except by his con- 
sent. Andrews v. Pritchett, 66 — 387. 

When an answer is put in in good faith, the defendant has a right to have the 
issues raised by it tried by a jury, and the court will not adjudge it frivobus un- 
less its all^^tions are clearly impertinent Swepson v. Harvey, 66—436; Er- 
win V. Lowery, 64 — 321; Womble v. Fraps, 77 — 198; Hull v. Carter, 83 — 249. 

Sfg § § 247 and 388, ante, and § 409. post, and cases there cited. 

A plaintiff can not be deprived of his right to have issues of fact tried by a 
jury by a motion to non-suit in the midst of a trial. The right of a jury trial 
is a constitutional right and the motion to non-suit substitutes the judgment of the 
court for that of the jury. Andrews v. Pritchett, 66 — 387; Stith v. LookabiU, 
71—25. 

The constitution of the state, article rv, section 13, provides " that in aU 
issues of fact joined in any court, the parties may waive the ri^ht to have the 
same determined by a jury, in which case the finding of the judge upon the 
facts shall have the force and effect of a verdict of a jury." 

The right of jury trial here secured is not absolute, but only submodo, that 
is, upon all issues joined, the meaning of which term can only be ascertained 
outside of the constitution, and in the legislation since, to secure the benefit of 
this provision of the constitution. 

By this section of the Code, it is seen that the issues arise upon the plead- 
ings, and if they are issues of law, they are to be tried by the court, but if they 
are of fact, they are to be tried by jury, unless a jury is waived. When issues of 
fact are thus made up and joined by the pleading, they stand for trial, and 
must be tried in one of two ways, either by the jury or by the court. Armfield v. 
Brown, 70—27. 



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CLARK^S CODE OF CIVIL PROCEDURE. 213 



When an issue of fact is raised, involving the merits of the. controversy, and 
the defendant, in apt time, demands a jury to try that fact, it is error in the 
presiding judge to refuse such a demand and try the issue himself. Isler v. 
Murphy, 71 — ^436. 

A party is entitled to a jury trial unless he expressly waives his right. Lip- 
pard V. Roseman, 72 — 427. 

Issues of fkei Arislnsr ou exceptions to refSeree's reforL—H wo»Ud 
seem^ that '* issues of fact made by exceptions to the report of a referee, in 
stating an account, when eliminated by exceptions to the report, may be tried 
by a jury, unless the parties waive the right to have them tri^ in that manner. 
Keener v. Finger 70 — 35. 

When exceptions are filed to a report made under a compulsory reference, 
" issues of fact" are raised thereby and either party has the right to have them 
tried by a jury. Green v. Castleberry, 70 — 20 

Where no eTidenee Is offered on eltker side.— Where no evidence on 
Hther side is submitted to the jury which is discharged, the cause still remains 
at issue. Chastain v. Martin, 81 — 51. 

Findini^ an immaterinl issne.— When in an action for damages the junr 
find the first issue submitted in such a way as to absolve the defen(hint from all 
liability, their finding in response to another issue the amount of damages sus> 
tained is not inconsistent, but immaterial. Purnell v. Pumell, 89 — 42. 

^^ § §393i 395i ^^^^% And ^o^^post^ and cases there cited. 

5ee, S99. Other isssue^ to he tried by the court or Judge. 
C. C. r., «• 226. 

Every other issue is triable by the court, or the judge 
thereof who, however, may order the whole issue, or any 
specific question of fact involved therein, to be tried by a 
jury, or may refer it. And when a compulsory reference 
is ordered, either party has the right to have the issues of 
fact tried by a jury. 

letion to set aside a deed for Ihwd.—In an action to set aside a deed for 
fraud, a judge may, by § 437 of the Code, try such issues of fact as are 
made by the pleadings. He may also submit to a jury issues so framed as 
to present any question of fact on which he doubts, but he is not bound bv 
their verdict, and may proceed to find the facts otherwise than they have found; 
and he may also find facts not embraced in the issues submitted to them. 
Goldsborough v. Turner, 67 — ^403. 

See. 400. Issues off tut, when to be tried. C. C. P.,s. 226. 

Every issue of fact joined on the pleadings, and inquiry 
of damages required to be tried by a jury, shall be tried at 
the term of the court next ensuing such joinder of issue 
or order for inquiry : Provided^ such issue shall have been 
joined or order for inquiry made, more than thirty days 
before such term, but if not, they shall be tried at the second 
term after such joinder or order. 



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214 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 401. Trial may he postponed by clerk or judge before 
the trial term on notice. C. C. P., b. 227 • 

Any party to an action may apply to the court in which 
it is pending, or to the judge thereof, after three days' no- 
tice in writing to the adverse party, to have the trial deferred 
to a term subsequent to that in which it is regularly 
triable ; such application must be made thirty days before 
the trial term, and must be on aflSdavit. The court or judge 
may defer the trial as asked for, on such terms as shall be 
just, if satisfied — 

(1) That the applicant has used due diligence to have his 
case ready for trial ; and, 

(2). That by reason of circumstances beyond his control, 
which he shall set forth, he can not have a fair trial at the 
regular trial term ; if the application is made by reason of 
the expected absence of a witness, it shall state the name 
and residence of the witness, the facts expected to be proved 
by him, and the grounds for the expectation of bis non- 
attendance, and that the applicant expects to procure his 
evidence at or before some named subsequent term. The 
applicant shall in all cases pay the costs of the application. 

Sec. 402. Tri€U postponed by Judge in term, time, when. C. 
C. P., 9. 228. B. C, c. 31, 8. 57 (IS, 14). 

The judge at any time during the term at which an ac- 
tion is triable, may postpone the trial on the application of 
either party, and on such terms as shall be just, if satisfied : 

(1). That the applicant has used due diligence to be ready 
for trial ; 

(2). That he can not have a fair trial at that term, by 
reason of circumstances stated, and if the ground of appli- 
cation be the non-attendance of a witness, the aflSdavit shall 
contain the particulars required by sub-division two of the 
preceding section. Unless the applicant shall also set forth 
in his aflSdavit that the facts upon which his application is 
grounded occurred or came to his knowledge too late to 
allow him to apply as prescribed in the preceding section, 
and that his application is made as soon as it reasonably 



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CLARK'S CODE OF CIVIL PROCEDURE. 



215 



could be after the knowledge of such facts, the postpone- 
ment shall not bt^ granted, except on the terms of the pay- 
ment of the costs in the action for the term. 

Coutlnaance a matter of diseretlon, — Granting or refusing a continuance 
is in the discretion of the presiding jud^e, and it would require circumstances 
proving beyond doubt hardship and injustice to induce the supreme court to 
review the exercise of such discretion, if indeed it has the power. Moore v, 
Dickson, 74 — 423. 

An appeal from a continuance is useless since the appeal itself works a con- 
tinuance. Isler V. Dewey, 79 — I. 

An order of continuance is not reviewable, unless there is palpable abuse. 
McCurry v. McCurry, 82 — 296 ; Austin v. Clarke, 70 — ^458 ; Armstrong v. 
Wright. I Hawks, 93. 

Sec. 403. Order of business. C. C. P., s. 229. 

The criminal calendar shall be first disposed of, unless, 
by consent of counsel, or for reasons satisfactory to the 
judge, particular criminal actions may be deferred. The 
issues on the civil calendar shall be disposed of in the follow- 
ing order, unless, for the convenience of parties or the dis- 
patch of business, the court shall otherwise direct : 

(1). Issues of fact to be tried by a jury ; 

(2). Issues of fact to be tried by the court ; 

(3). Issues of law. 



CHAPTER THREE. 
TRIAL BT JXTBT. 



Section. 

404. Jury, how drawn. 

Petit Jurors sworn in civil oa- 
cases ; defaulting persons 
fined. 

Names of jurors to be called 
before impaneled; right of 
challenge. 

Separate trials. 

General and special verdicts 
defined. 

When j ury may render either 
a general or special ver- 
dict, and when Judge may 
direct a special finding. 
410. On special finding with gen- 
eral verdict, former to con- 
trol. 



405. 



406. 



407. 
408. 

409. 



Section. 

411. Jury to assess defendant's 

damages in certain cases. 

412. Entry of the verdict ; motion 

for new trial on Judge's 
minutes; exceptions, how 
taken, and how deemed 
taken. 

413. Judge to explain law, but 

to express no opinion on 
fects. 

414. Judge to put his instruc- 

tions in writing. 
416. Counsel to put their prav* 
ers for instrudtion in 
writing. 



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2l6 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec, 404. Jtiry, how drawn. R. C.9C.31,9.33* 1779, e. 157$ 

9.11. 

The judges of the superior court, at the term of their 
courts, shall direct the names of all persons returned as 
jurors to be written on scrolls of paper and put into a box 
or hat and drawn out by a child under ten years of age ; 
whereof the first eighteen drawn shall be a grand jury for 
the court ; and the residue shall serve as petit jurors for the 
court. 

Disqualification of Jarors* — ^A juror is not disqualified by failure to pay 
his taxes for the previous year, when the sheriff has been enjoined from collect- 
ing it. St. V. Heaton, 77 — 505. 

The existence or a suit at issue (in the same court) to which the juror is a 
party at the time he is drawn, renders him incompetent as a jury. St. v. Smith, 
80—410. 

Note — For former practice, see Battle's Digest, vol. 2, pp. 810, 811. 

Bee. 405. Beta Jurors sworn In civil cases ; defaulting per^ 
sons fined. B. C, c. 31, s. 34. 1790, c. 321. 1822, c. 
1133, s. 1. 

The clerk shall, at the beginning of the court, swear 
such of the petit jury as are of the original panel, to try all 
civil cases ; and it there should not be enough of the origi- 
nal panel, the talesmen shall be sworn; and the petit 
jurors of the original panel, as well as talesmen, shall be 
sworn as prescribed in the chapter entitled ** Oaths " : Pro- 
videdy that nothing herein shall be construed to disallow the 
usual challenges in law to the whole jury so sworn or to 
any of them ; and if by reason of such challenge, any juror 
shall be withdrawn, his place on the jury shall be supplied 
by any of the original venire, or from the bystanders quali- 
fied to serve as jurors, and the judge or other presiding offi- 
cer of the court shall decide all questions as to the compe- 
tency of jurors in both civil and criminal actions. Any 
juror failing to appear shall be fined by the court the sum 
of forty dollars, and notice shall issue to such juror to ap- 
pear at the next term of the court and show cause why the 
judgment should not be made absolute. 

Tales Juror. — A tales juror must own a freehold in the county, St. v. 
Cooper. 83—671. 

A tales juror must have all the qualifications of a regular juror with the addi- 
tional one of being a freeholder. St. v. Whitley, 88-5>9i. 



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CLARK'S CODE OF CIVIL PROCEDURE. 217 

Sec* 406* If antes of Jurors to be caUed before impaneled ^ 
right of challenge. B. €., c. 31, s. 335. 1796, c. 4S2, s. 2. 
1812, c. 833. 

The clerk, before a jury shall be impaneled to try the 
issues in any civil suit, shall read over the names of the 
jury upon the panel in the presence and hearing of the par- 
ties or their counsel ; and the parties, or their counsel for 
them, may challenge peremptorily four jurors upon the 
said panel, without showing any cause therefor, which 
shall be allowed by the court. 

Whether there is one or more plaintiffs or defendants, only four peremptory 
challenges to the jury on either side are allowable. Bryan v. Harrison, 76—360. 
See^ for former practice, Battle's Digest, vol 2, pp. 8n — 816. 

Sec. 407. Separate tri€as. C. C. P., s. 230. 

A separate trial between a plaintiff and any of the sev- 
eral defendants may be allowed by the court, whenever, in 
its opinion, justice will thereby be promoted. 

Sec. 408. General and special verdicts defined. C. C. P., 
s. 232. 

A general verdict is that, by which the jury pronounce 
generally upon all or any of the issues, either in favor of 
the plaintiff or defendant. A special verdict is that by 
which the jury find the facts only, leaving the judgment 
to the court. 

A special verdict is not always required. School Committee v. Kesler, 
66—323. 

Sec. 409. When Jury may render either a general or spe- 
cial verdict, and when Judge may direct a special finding. 

€•• €/• -» •> S. /^33. 

In an action for the recovery of specific personal prop- 
erty, if the property has not been delivered to the plaintiff, 
or the defendant by his answer claims a return thereof, the 
jury shall assess the value of the property, if their verdict 
be in favor of the plaintiff; or if they find in favor of the 
defendant, and that he is entitled to a return thereof, they 
may at the same time assess the damages, if any are claimed 
in the complaint or answer, which the prevailing party 
has sustained by reason of the detention or taking and with- 
28 



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2l8 CLARK'S CODE OF CIVIL PROCEDURE. 

holding such property. In every action for the recovery 
of money only, or specific real property, the jury, in their 
discretion, may render a general or special verdict. In all 
other cases, the court may direct the jury to find a special 
verdict in writing, upon all or any of the issues; and in all 
cases may instruct them if they render a general verdict, to 
find upon pariicular questions of fact, to be stated in writ- 
ing, and may direct a written finding thereon. The special 
verdict or finding shall be filed with the clerk, and entered 
upon the minutes. 

Irre^alarity in formation of jnry, — Irregularity in the formation of a jury 
is cured by the verdict. St. v. Boon, 82 — 637; St. v. Ward, 2 Hawks, 443. 

Also cured by putting in answer or defense. St. v. Matthews, 82 — 672. 

Objectionable langraage of counsel.— Discretionary for judge to slop 
counsel or to correct their improper remarks in his charge. Kerchner v. Mc- 
Rae, 80 — 219; St. V. Matthews, 80 — 417. 

If the language of counsel is gross the court should stop him. Cannon v. 
Morris, 81 — 139; St. v. Caveness, 78 — 484; Jenkins v. Ore Co., 65 — 563; St. v. 
Sherrill, 82—^93. 

Papers handed to jury, — It is error for the court to hand to the jury (on 
their retirement) papers which have been read as evidence, if objection is made. 
Williams v. Thomas, 78 — 47; Outlaw v. Hurdle, I Jon., 150; Watson v. Davis, 
7 Jon., 178; Burton v. Wilkes, 66—604. 

Where papers were offered in evidence but not read to the jury, it was 
proper to refuse leave to the jury to take them into the jury room. Hannon 
V. Grizzard, 89 — 115. 

See for conduct and province of jury under former practice, Battle's Digest, 
vol. 2, pp. 810 — 817. 

Submission of issoes to ajnry. — Submitting to a jury, issues upon points 
not necessarily decisive of the case, and requiring verdicts neither general nor 
special, in form, is irregular. Henry v. Rich, 64 — 379. 

The court can in its discretion submit issues compounded of law and fact to 
the jury under instructions as to law, or it may direct the jury to find the facts 
and reserve the right to pronounce the judgment of the law. Grant v. Bell, 
87—34. 

Where a party has voluntarily submitted a question to be tried by a jury 
which was properly triable by the court, but upon evidence and under instruc- 
tions not excepted to, he can not afterwards be heard to raise the objection. Leg- 
gctt v. Leggett, 88 — 108. 

See cases cited under § 393, 395 and 398, ante^ and cases there cited. 

Instructions to find a special verdict. — The court has the power under 
the Code, § 409, to direct a special finding upon an issue in an action for an 
account and settlement of a trust fund, and so also in all olher cases except 
where the suit is for " money only" or '* specific real property." Com'rs v. 
Lash, 89 — . 

Where rerdict is inconsistent. —Where the verdict upon the several issues 
submitted is inconsistent, a new trial will be ordered. Mitchell v. Brown, 
88—156 ; Bank v. Alexander, 84 — ^30. 

The finding of a jury, in an action for damages for an assault, that the de- 
fendant acted in self-defence, renders a finding as to the amount of damages im- 
material, and not inconsistent. Purnell v. Purnell, 89 — ^42. 



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CLARK'S CODE OF CIVIL PROCEDURE. 219 

Where, by consent^ the coort tries the issnes of fact.— When the parties 
consent that the court may try issues of fact, it confers upon the judge all the 
rights and duties of a jury. He may revise and correct his own findings and 
invoke the aid of a jury, and may direct a general or special verdict, upon all 
or any issues or upon any question of fact ; all of which findings shall be writ- 
ten and entered of record. Armfield v. Brown, 70 — 27. 

If the speeifle goods ean be retarned, thoagrh injured.— If the party 

offer to return the goods, the other can not compel him to pay their value, al- 
though they may be deteriorated by exposure, decay or external injury, or fall 
in price, as long as they remain in specie. Holmes v. Godwin, 69—467. 

Damages, where the goods can not be returned In specie.— If it appear 

on the trial, that the property had been destroyed, so that there can not be a 
return, the jury would, probably, be justified in finding that fact, and the 
claimant might then have judgment for the same with interest from the time of 
taking. Holmes v. Godwin, 69 — 467. 

The value of the property must be assessed on the trial and also the damages, 
for detention, in order that, if there can not be a re-delivery of the goods in 
specie, the party recovering may have execution for their value. Holmes v. 
Godwin, 69 — 467. 

One element of the damages for taking and detention is the difference in 
value between the time of taking and the time of delivery, provided it be less . - . / 

at the latter time. Holmes v. Godwin, 69 — 467. ,>r,, ^ t^'^ As. 

See § § 321, anie^ and 431, post^ and cases there cited. 

Sec. 410. On special finding with general verdict , farmer to 
control. C. C. P., /». 234. 

Where a special finding cf facts shall be inconsistent with 
the general verdict, the former shall control the latter, and 
the court shall give judgment accordingly. 

Sec. 411. Jury to astfess defendants damages in certain 
cases. C. C. P., s. 235. 

When a verdict is found for the plaintiff in an action for 
the recovery of money, or for the defendant when a setoff 
for the recovery of money is established, beyond the amount 
of the plaintiff's claim as established, the jury must also 
assess the amount of the recovery; they may also, under the 
direction of the court, assess the amount of the recovery 
when the court gives judgment for the plaintiff on the an- 
swer. If a set-off, established at the trial, exceed the plain- 
tiff's demand so established, judgment for the defendant 
must be given for the excess; or if it appear that the de- 
fendant is entitled to any other aflSrmative relief, judgment 
must be given accordingly. 



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220 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 412. Entry of the verdict ; motion for new trial an 
Judge^s minutes; exceptions how taken, and when deemed 
taken. C. C. P., s. 236. 

(1). Upon receiving a verdict, the clerk shall make an 

entry in his minutes, specifying the time and place of the 

trial, the names of the jurors and witnesses, the verdict, 

and either the judgment rendered thereon, or an order that 

the cause be reserved for argument or further consideration. 

If a different direction be not given by the court, the clerk 

must enter judgment in conformity with the verdict. 

Jury recalled for further Instractious. — It is discretionary with the pre- 
siding judge whether he will recall the jury and submit instructions which were 
not presented until the charge was finished and the jury had retired to consider 
of their verdict. Scott v. Green, 89—. 

Verdict imperfect^ jury called togrether ajcaiti.— Where a verdict ren- 
dered to the clerk by consent is imperfect, the judge can call the jury together 
again to perfect it. Willoughby v. Threadgill. 72 — 438 ; Robeson v. Lewis, 
73 — 107 ; Bright v. Hemphill, 81 — 33. 

Jadgrment can not be set aside after the term except for mistake or 
excusable negrlect* — A judgment regularly entered can not be set aside after 
court, or at next term, except for mistake or excusable negligence under § 274, 
ante. Sharpe v. Rintels, Phil., 34 ; State v. Alphin, 81 — 566 ; Davis v. Shaver, 
PhU., 18. 

(2). If an exception be taken upon the trial, it must be 
reduced to writing at the time with so much of the evidence 
or subject matter as may be material to the exception taken; 
the same shall be entered in the judge's minutes and be 
filed with the clerk as a part of the case upon appeal. 

Exceptions to evidence must be in apt time.— Where incompetent evi- 
dence is received without objection, the party affected by it can not afterwards 
complain. Scott v. Green, 89 — . 

Exceptions to evidence must be taken in apt time on the trial, or they arc 
waived. State v. Ballard, 79—627 ; Shields v. Whitaker, 82 — 516. 

Immaterial evidence, rejected or admitted.— Neither the admission of in- 
competent nor the rejection of competent evidence, not material^ to the issue or 
misleading, is assignable for error. Com'rs v. Lash, 89 — . 

^3). If there shall be error, either in the refusal of the 
judge to grant a prayer for instructions, or in granting a 
prayer, or in his instructions generally, the same shall be 
deemed excepted to without the filing of any formal objec- 
tions. 

Omission to charge, no exception being: taken.— An omission to charge 
that there was no evidence when there was no controverted point, no prayer for 
instructions and no exception to the charge till after the jury have rendered a 
verdict can not be assigned as error. State v. Nicholson, 85 — 548 ; State v. 
Caveness, 78 — 484. 



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CLARK'S CODE OF CIVIL PROCEDURE. 221 



An omission to give a particular charge not asked in the court below can not 
be noticed as an exception on appeal. Arey v. Stephenson, 12 Ire., 34 ; Hicc 
V. Woodard, 12 Ire., 293; State v. Hardee, 83 — 619; State v. O'Neal, 7 
Ire., 251. 

An omission lo recapitulate evidence favorable to a party is not assignable for 
error if not pointed out at the time. State v. Grady, 83— -643. 

£xc«>ptlou mnst be taken at the trial and noted.— The exception to the 
instructions of the judge must be taken at the trial and noted.— Williamson ▼. 
Canal Co., 78—156; Stout v. Woody, 63—37 ; White v. Clark, 82 — 6. 

Exception mast point oat error. — An exception to a judge's charge which 
docs not point out the alleged error will be disregarded. Bost v. Bost, 87 — 477. 

Althongh no exception be taken at tlie trial.— Although no exception , 

be taken to the charge at the time, yet if there b- error in the instructions 
given, the parly may assign it. Bynum v. Bynum, ii Ired., 632; State v. 
Austin, 79— -624 ; Burton v. R. R., 82 — 504 ; Burton v. R. R., 84 — 192 ; Ring 
V. King, 4 D. & B., 164; Grist v. Backhouse, 4 D. & B., 164. 

^^ § § 413 ^ncl 550» /^"^A ^^^ cases cited ; also. Battle's Digest, vol. 2, pp. 
1008 — 1017. 

Note. — The above contradictory decisions are upon the practice, and the 
sub-section as it was formerly. As now amended, it seems that the charge of the 
judge can be excepted to generally and without making exception at the trial. 

(4). The judge who tries the cause may, in his discretion, 
entertain a motion, to be made on his minutes, to set aside 
a verdict and grant a new trial upon exceptions, or for in- 
sufficient evidence, or for excessive damages; but such mo- 
tion can only be heard at the same term at which the trial 
is had. When such motion is heard and decided upon the 
minutes of the judge, and an appeal is taken from the de- 
cision, a case or exceptions must be settled in the usual form, 
upon which the argument of the appeal must be had. 

Modification of rerdict* — The court can set aside, but can not amend or 
modify a verdict. Shields v. Lawrence, 82 — 516. 

A new trial must not be confined to only one issue where all are essential. 
Merony v. Mclntyre, 82 — 103. 

Motion mnst be made and heard at same t«rm.— The judge must hear a 
motion for a new trial, for the causes mentioned in this section, at the term the 
case is tried, and has no power to continue it to another term. England v. 
Duckwprth. 75— 309« 

This section was not intended as a statement of all the grounds of a new 
trial, but as additional to the grounds mentioned in § 274, and also to prescribe 
that, in the cases mentioned here, the motion must be made at the term when 
the trial is had. Quincey v. Perkins, 76 — 295. 

New trial properly granted. — It is not error to grant a new trial, where 
the issues submitted to the jury were confused. Tankard v. Tankard, 79 — 54. 

A new trial is properly granted where the findings of the jury are irreconcila- 
ble. Bank v. Alexander, 84 — 30 ; Mitchell v. Brown, 88 — 156. 

New trial properly reftised.— It is error to grant a new trial on the ground 
that damages are excessive, when the evidence showed the act\ial amount of 
damage, and the verdict was in accordance therewith. Winbume v. Bryan, 
73—47. 



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222 CLARK S CODE OF CIVIL PROCEDURE. 



New trial for newly dlHcovered testimony,— The rules in relation to ap- 
plications for new trials for newly discovered evidence and the principles on 
which they are founded discussed by Pearson. C. J. Bledsoe v. Nixon, 69 — 81. 

Granting a new trial because of newly discovered evidence must necessarily 
always, or nearly always, be within the discretion of the presiding judge, and 
his decision can very larely in such cases be on a naked matter of law or legal 
inference so as to authorize an appeal. Holmes v. Godwin. 69 — 467. 

In an affidavit in support of a motion for a new trial for newly discovered 
evidence, in ascertaining the whereabouts of a witness since the trial, it is not 
sufficient in accounting for its being previously unknown to state that "every 
means had been used lo find out where iJk witness was." The applicant should 
state what means he did use and let tne court judge. Shehan v. Malone. 
72—59. , 

A motion for a new trial for newly discovered testimony, should only be 
granted if the testimony discovered since the trial is probably true and would 
have produced a different result if known, and when it could not have been 
then discovered by reasonable diligence and such reasonable diligence was 
in fact used. Henry v. Smith, 78 — 27. 

Motion for new trial pending an appeal. — If an application for a new 

trial for newly discovered evidence is made dunng an appeal pending in the 
supreme court, upon a proper case that court will remand the case that the 
superior court may take proper action. U the newly discovered evidence applies to 
only part of the judgment, the supreme court will retain the cause and send down 
proper issues lo be tried. Pending the appeal, the motion can not be made 
in the superior court. Bledsoe v. Nixon, 69 — 81; Shehan v. Malone, 72 — 59: 
Henry V. Smith, 7S — 27. 

Injustice's coart. — A new trial can not be allowed in a justice's court. 
The pirty dissatisfied has his remedy only by appeal, the Code, § 865, 
but where the judgment is rendered in the absence of either party and such 
absence is occasioned by any of the causes specified in § 845, relief may be had 
wilhin ten days after judgment by filing an affidavit setting forth the grounds 
therefor before the justice. Gambill v. Gambill, 89 — . 

Sec, 41'i. Judge to explain law, but to express no opinion 
on facts. C. C. P., s. 237. R. C, c. 31, s. 130. 1796, c. 
452, s, 1. 

No judge, in giving a charge to the petit jury, either in a 
civil or a criminal action, shall give an opinion whether 
a fact is fully or suflBciently proven, such matter being the 
true office and province of the jury ; but he shall state in a 
plain and correct manner the evidence given in the case, 
and declare and explain the law arising thereon. 

What is an expression of opinion.— It is error for the judge to charge 
the jury that they must find for one of the parties, unless they believed his wit- 
ness had committed perjury. State, v. Thomas, 7 Ire., 381. 

It is a clear violation of the prohibition againt the judge expressing an opinion 
as to the facts, for a judge to tell the jury that a book of science, read by counsel, 
was entitled to as much authority as a witness who had been examined as an 
expert. Melvin v. Easley, I Jones, 386. 

Any remark made by the judge from which the jury can infer what his opin- 
ion is as to the sufficiency or insufficiency of the evidence, or of any part of it 
pertinent to the issue, is error, and it is not corrected by his telling the jury that 
it is their exclusive province to weigh the evidence, and that they are not bound 
by his opinion in regard thereto. State v. Dick, 60 N. C, 440 (2 Winst., 45). 



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CLARK'S CODE OF CIVIL PROCEDURE. ' 223 



When a judge in charging a jury says, ** If her character (referring to a wit- 
ness) IS of ordinary respectability, you will take her testimony to be true, unless 
she is fully and thoroughly contradicted," this is error. Stale v. Parker, 66 — 
624. 

The judge who tries an action has no right to intimate in any manner his 
opinion as to the weight of the evidence, or to express an opinion on the facts. 
When there is any evidence to the contrary, it is error for the judge to say **we 
arc not informed," of a matter on vhich the jury should pass. Powell v. W. & 
W. R. R. Co., 63—395. 

The judge can not weigh the evidence, and declare the result to the jury as 
a matter of law. Slate v. Locke, 77—481. 

A judge is not justified in expressing to the jury his opinion upon the evidence 
adduced. State v. Dixon, 75 — 275. 

It is error, as intimating an opinion on the facts, to charge that the fact that 
the witness is included in the same indictment will impair his testimony, and 
that it should not be put on the same plane with that of a disinterested witness 
of undoubted character. State v. Jenkins, 85 — 544. 

What Is not an expre^ion of opinion. — It is not a violation of this sec- 
tion for the judge to tell the jury that a witness *' had given a fair and candid 
statement, and appeared to be a creditable man," the statement being admitted 
to be correct. State v. Davis, 4 Dev., 412. 

The judge is not a mere moderator. He is an integral part of the mixed tri- 
bunal which is to pass upon the issue. While he is forbidden to express to the 
jury any opinion upon the facts, he is bound to declare and expound to them 
the law applicable to the case. Stale v. Johnson, I Ired., 354. 

The prohibition restraining the judge fro\n expressing to the jury an opinion 
as to the "fads" of the case, only applies to those "facts" respecting which 
the parlies take issue or dispute, and upon whose existence depends the liability 
of the defendant. State v. Angell, 7 Ired., 27. 

It is not giving undue weight to the statement of a witness for the court in its 
charge to make an explanation protecting him from the unjust animadversions of 
counseJ, especially where the erroneous ruling of the court had afforded the occa- 
sion for the animadversions. State v. Whit, 5 Jones, 224. 

It is not suf][icient that what the judge said or did, might have have had an 
unfair influence on the jury ; but it must appear with ordinary ceriainty that it 
was likely to have had an unfair influence, or to convey to the jury his opinion 
on the weight of the testimony. State v. Jones, 67 — 285. 

A remark by the judge that a witness is *' overcome with emotion " is not « 
violation of this section. State v. Laxton, 78 — 564. 

It is no invasion of the province of a jury for the judge, on the trial of an 
issue involving the mental condition of a party to the contract, to charge that the 
** law attaches peculiar importance to the opinion of medical men who have the 
opportunity of observation upon questions of mental capacity, as by study and 
experience they become experts in the matter of bodily and menial ailments." 
Flynt V. Bodenhamer, 80 — 205. 

It is the duty of the court to state in a plain and correct manner the evidence 
in the case, and to declare and explain' the law arising ihereon, but he invades 
the province of the jury if he expresses an opinion as to the weight of the evi- 
dence. State V. Hardee, 83 — 619. 

A remark of the judge that a long cross-examination had been carried far 
enough, made in such a way as was not calculated to express any opinion upon 
the weight of the evidence, is not assignable for error. State v. Robertson, 
86—628. 

It is not error for a judge in his charge to the jury to pronounce a moral dis- 
sertation, provided the language used is without prejudice to either party. Stilley 
v. McCox, 88—18. 

Where the relation of principal and agent subsists, the demand for an account 
necessary to put the statute of limitations in operation must be such as to put an 
end to the agency ; an application by letter asking information of the agent con- 
cerning the trust fund is not such demand, and the remark of the judge in this 



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224 ^ CLARK'S CODE OF CIVIL PROCEDURE. 

case that the letter upon its face does not purport to be a demand, was no inva- 
sion of the province of the jury. Com'rs v. Lash. 89 — . 

When the jury come into court and announce their inability to acrce, it is not 
a violation of this section for the judge to intimate to them that if their failure to 
agree arises from a disregard of his charge, he will keep them together till the 
end of the term. Hannon v. Grizzard, 89 — 115. 

At any time during the trial. — It is a violation of this section for the judge, 
at any time during the trial, to express an opinion before the jury on the weight 
of the evidence. State v. Browning, 78 — 555; March v. Verble, 79 — 19; Sever 
V. McLaughlin, 79 — 153; Fickey v. Merrinion, 79 — 585. 

Intimation of opinion bj empliasis.— The judge may, by his manner or 
emphasis, infringe this rule, but the record must set it out so the court can 
judige of it. Reiger v. Davis, 67 — 185. 

It is error for a judge in his charge to the jury upon a point in the evidence to 
ask a question as to what that could mean, with emphasis calculated to show 
his opinion thereon. State v. Dancy, 78 — 437. 

If the court expresses or intimiites an opinion. — If the court expresses 
an opinion on the facts, a new trial will be awarded. Orbison v. Morrison, 3 
Mur., 551 ; Tale v. Greenlee, 3 Mur., 556; Powell v. Railroad, 68 — 395. 

If the court intimates to the jury his opinion on matters of fact, it is ground 
for a new trial. Reel v. Reel, 2 Hawks, 63; Nash v. Morton, 3 Jones, 3. 

If evidence is safflcient. — The judge may say to the jury that a particular 
fact is proved, if the jury believes the witness who dei>oses to it. Sneed v. 
Crealh, i Hawks, 399 ; Hannon v. Grizzard, 89 — 115. 

Where the evidence is direct, leaving nothing to inference, and if believed is 
the same thing as the fact sought to be proved, the judge can instruct the jury 
that if ihey believe the witness, they may find for the plaintiff or defendant. 
But this is not allowed where the evidence is circumstantial, or where the evi- 
dence on the other side tends to explain it, or to rebut the inference, or to con- 
tradict the witness. — Gaither v. Ferebet, 60 N. C. (i Wins.). 310. 

If there is no evidence.— A judge has no right to inform the jury Aow 
much weight is to be given to testimony, but it is his duty to inform them when 
it weighs nothing. Reed v. Schenck, 2 Dev., 415; Wells v. Clements, 3 Jones, 
168 ; Slate v, Allen, 3 Jones, 257 ; Slate v. Dunlap. 65 — 288 ; Witkowsky v. 
Wasson. 71 — 451 ; State v. McK-nsey, 80 — 458. 

A judge in charging a jury has a right to tell them there is no evidence upon 
a question, but not to tell them that the evidence is not sufficient to warrant 
them in finding one way or the other. Wells v. Clements, 3 Jones, 168. 

Distinction between no evidence and iusaffleient evidence.— Evidence 

which merely shows it is possible for the fact in issue to be true, or which raises a 
mere conjecture that it was so, is an insufficient foundation for a verdict, and 
should not be left to a jury. We may go farther and say, that the evidence 
must be such as will support a reasonable inference of the fact in issue. State 
v. Vinson. 63 — 335. 

Whether there be any evidence is a question for the court ; whether there 
be sufficient evidence is for the jury. The term *' any evidence " in this formula 
does not mean a mere scintilla of evidence, but sufficient to enable a jury rea- 
sonably to infer the existence of the alleged fact. Wiitowsky v. Watson. 71 
— 351. Mr. Justice Bynum dissents from this principle, and Mr. Justice Readc 
qualifies his assent. 

If there is any evidence tending to prove a controverted proposition and rea- 
sonable sufficient to establish it, such evidence should be submitted to the jury. 
State V. Mathews, 80 — 417. 

The weight of evidence. — The w^^^/ of 'testimony is exclusively for the 
jury to consider. Its nature, relevancy and tendency ^ it is the duty of the judge 
to explain to them. State v. Moses, 2 Dev., 452. 



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CLARK'S CODE OF CIVIL PROCEDURE. 225 

Threat not to discharge Jury. — Where the judge says to the jury, ** It is a 
plain case and if you do not agree I will detain you till Saturday night," it is a 
clear violation of this section. Nash v. Morton, 3 Jones, 3 ; contra^ Hannon v. 
Grizzard, 8g — 115. 

If eyidence is erroneoaslj admitted^ or oxcladed, correction daring 

the trial* — Where a judge commits an error in excluding or admitting evidence, 
it is his duty to correct it before the jury retire. Gilbert v. James, 86 — 244. 

Disagreement as to what the evidence is.— Upon a disagreement of coun- 
sel as to the testimony of a witness, upon the trial of a cause in the superior 
court, the court recalled the witness, and reduced his testimony upon the dis- 
puted matter verbatim^ to writing, which, upon being read to the witness, was 
acknowledged by him to be correct. Counsel made no objection to the correct- 
ness of the written evidence, and the same was read to the jury by the coifrt. 
Held, that it was not error in the court below to refuse to allow counsel to argue 
to the jury that the witness, when recalled, had made a different statement from 
that read to the jury by the court. Davis v. Hill, 75 — 224. 

W^hen the judge and counsel differ as to the testimony of a witness, it is com- 
petent for the judge to submit his notes to the jury, explaining that he mieht be 
mistaken in taking down the notes, but the jury could refresh their memories by 
them. State v. Keath, 83 — 626. 

Error as to question of fact being one of law can be corrected.— When 

a judge decides upon a question as being one of law when it is one of fact, it is 
competent for him to correct his mistake and submit it to the jury. State v. 
May, 4 Dev., 328. 

If the farj find an issue of law correctlr. it cares the error of the 
Jadge. — If a jury decide correctly a question of law, improperly left to them by 
the court, the verdict cures the error of the court. Glenn v. Railroad Company, 
63—510. 

What are the boundaries of a contract of land, is a question of law. But if 
the judge below leaves such question to the jury, and they find the law as his 
Honor ought to have held, no advantage can be taken of his Honor's charge. 
Johnson v. Ray, 72 — 273. 

If the judge lays down the law incorrectly, but the jury find it properly, the 
error is cured by ihe verdict. State v. Grady, 83 — 643. 

Interest. — A judge has no right to leave it to the jury to give the plaintiff 
interest or not, as they may think proper. He should have instructed them, 
that if they found that the defendant owed the principal money demanded, 
the plaintiff was entitled to interest from the time it was due. Barlow v. Nor- 
fleet, 72—535. 

^'^ § § 530. and 531. post, and cases cited. 

The judge's charge construed by the context.— The judge's charge must 
be construed with reference to the context. State v. Boon, 82 — 637; State v. 
Tilly, 3 Ire., 424. 

Charge should be on the whole case.— It is not the duty of the judge to 
stale the law on any selected fact, but to charge the law upon the whole case. 
Wilson V. White, 80—280 

Charge not to be on a state of facts not cjstablished.— It is not error for 
the judge to refuse to charge upon a state of facts not established by the evi- 
dence in the case. State v. Clara, 8 Jones, 25; State v. Cain, 2 Jones, 201; 
Slate v. Rush, 12 Ire., 382; State v. Hargett, 65 — 669; Wilson v. Holley, 66 
—407. 

Instructions need not be in the yerj words asked.- A charge which sub- 

stanlially conforms to the instruction asked is sufficient. State v. Scott, 64 — 586; 
State V. Brantley, 63 — 518; Burton v. March, 6 Jon., 409; State v. Boon, 82 — 
637; State v. Hinson, 83—640; Brink v. Black, 77—59 
A judge need not give the instructions in the very words asked, even when cor- 

29 

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226 CLARK'S CODE OF CIVIL PROCEDURE. 



rect in law. But he shall declare the law as applicable to the facts in proof, 
and to any reasonable inference from them, Rencher v. Wynne, 86 — 268. 

The jadgre »hoold stale dearly the issues and the law applicable there- 
to* — It is the duty of the judge when he does charge upon evidence to collate 
It and bring it together in one view, on each side, with such remarks and illus- 
trations, as may properly direct the ateniion of the jury. He should also bring 
to their notice principles of law or facts which have an important bearing 
upon the case, though omitted in the argument of counsel. Baily v. Pool, 13 
Ire., 404. 

The judge should put the case to the jury in such a way as to make it appear 
by the record what facts the jury find, and what are his rulings and charge as 
to the law, so that he maybe reviewed. State v. Summey. 60— -496 (2 Winst., 
loS). 

When instructions are asked upon an assumed state of facts which there is 
evidence tending to prove, and thus questions of law are raised which are per- 
tinent to the case, it is the duty of the judge to answer the questions so pre- 
sented, and to instruct the jury distinctly what the law is, if they shall find the 
assumed state of facts to be true, and so in respect to every state of facts which 
may be reasonably assumed upon the evidence. Stnte v. Dunlop, 65 — 288. 

I'he judge should state clearly the issues and the law applicable to each. 
State v. Matthews, 78 — 523. 

If he fail to do so, it is ground for a new trial. State v. Dunlop, 65 — 288. 

In an action of ejectment, where a party relies upon two independent sources 
of title, i. e., a thirty years' adverse possession and a seven years* one with 
color, it is error in the court to omit to explain the character, nature and extent 
of the two kinds of possession, so as to enable the jury to determine whether 
the acts of ownership come up to the requirements of law. Logan v. Fitzger- 
ald. 87—308. 

Omission to chargre. — A judge is not bound to charge on all the points of 
a case. He may be silent as to a point, unless called upon by a party to charge 
upon it. But it is error to pass over a preliminary point to charge upon an- 
other which could not arise till the first point was disposed of. McNeill v. 
Massey, 3 Hawks, 91. 

While in tne absence of a prayer for instructions, the omission of a judge to 
charge in a particular way is not assignable as error, yet if he -undertake to 
state the law, and omit an essential ingredient it is fatal. State v. Austin, 
79 — 624; Bynum v. Bynum, 11 Ired.. 632; State >. O'Neal, 7 Ired., 251; 
State V. Johnson, i Ired.. 354; Pierce v. Alspaugh, 83 — 258. 

The omission to call the attention of the jury to the evidence brought out by 
the cross-examination, is not error, where counsel did not call the court's atten- 
tion to it, and the jury were charged to base their verdict on all the evidence. 
Stale V. Reynolds, 87 — 544. 

.S"^^ § 412, (3) ante, and cases cited. 

Recapitalation of evidence. — A judge is not bound to recapitulate all the 
evidence to the jury. State v. Haney, 2 D. and B., 390; State v. Morris, 3 
Hawks, 388; Slate v. O'Neal, 7 Ire., 251: State v. Lipsey, 3 Dev.. 485. 

The judge need not recapitulate the evidence when the parties waive it. 
Wiseman v. Penland, 79— 197; State v. Sykes, 79 — 618 

A judge should not recapitulate the evidence in full, but eliminate the ma- 
terial facts, array the state of facts on both sides, and apply the principles of 
law to each that the jury may decide the case according to ihtf credibility of the 
witnesses and the weight of the evidence. Slate v. Jones, 87 — 547; State v. 
Moses, 2 Dev., 457, 

Charge not explicit. — A proposition of law given in a chage to the jury, 
which is in terms too comprehensive or without its necessary limitations can not 
be assigned for error if it be appropriate to the case and not calculated to mis- 
lead. McLeod v. Bullard, 80 — 210. 

Where a judge deals in generalities merely reading *' head notes " of reported 



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CLARK'S CODE OF CIVIL PROCEDURE. 



227 



cases without making any application of them to the facts of the case it is not a 
compliance with the statute. State v, Jones. 87 — 547. 

&<f Judge's Charge, Battle's Digest, vol. 2, pp. 1006— 1017. 

Sec. 414. Judge to put his instructions in writing. C. C. P., 

s. 2S8. 

Every judge, at the request of any party to an action on 
trial, made at or before the close of the evidence, before in- 
structing the jury on the law, shall put his instructions in 
writing, and read them to the jury ; he shall then sign and 
file them with the clerk as a part of the record of the ac- 
tion. 

Shoaldbeaskedforatthedoseof the erideiice.— Instructions must be 
asked at the close of the evidence. They can only be asked afterwards by leave 
of the court. Powell v. W. & W. R. R. Co., 68—395. 

Faller or more specific Instractions mast be asked for, if desired*— 

On the trial of an action, if either party desires fuller or more specific instruc- 
tions than the court has given, it is his duty to ask for them. Morgan v. 
Smith, 77—37. 

If asked for. — When a party prays for instructions to which he is entitled, 
it is error to refuse it. The court however, is not required to adopt the words of 
the instruction asked, but it is error to change its sense, or to so qualify it as 
to weaken its force. Brink v. Black, 77 — 59. 

Sf^, as to last point, cases cited under § 413, an^. 



Counsel to put their prayers for instruction in 
C. €. P., s. 239. 



Sec. 415. 
writing, 

Counsel praying of the judge instructions to the jury, 
shall put their request in writing entitled of the cause and 
sign them ; otherwise the judge may disregard them ; they 
shall be filed with the clerk as a part of the record. 

See cases cited under § § 413 and 414, ante. 



CHAPTER FOUR. 



TRIAL BY THE COURT. 



SCETION. 

416. Trial by jury; how waived. 

417. On trial by the court, judg- 

ment, how given. 

418. Exceptions; how and when 

taken. 



Section. 

419. Proceedings upon judgment 
on issue of law. 



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228 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 410. Trial by jury ^ hotv waived. C. C. P., «. 240. 

Trial by jury may be waived by the several parties to an 
issue of fact, in actions on contract, and with the assent of 
th^' court in other actions in the manner following: 

(1). By failing to appear at the trial ; 

(2). By written consent, in person or by attorney, filed 
with the clerk ; 

(3). By oral consent, entered in the minutes. 

Trial bj jury, how waired. — There are three modes of waiving a jury 
trial : I. By default; 2, by written consent ; and 3, by oral consent entered on 
the minutes of the court. 

When the record shows that a reference has been made, it imports that every 
condition has been complied wiih» necessary to make it effectual, and cpnfers 
upon the court all the rights and duties conferred upon a jury. In the exercise 
of this power the court below may revise and correct its own findings, and to 
that end may invoke the aid of a jury in matters of doubt and conflicting evi- 
dence, and it may direct a jury to find either a general or special verdict, upon 
all or any of the issues, or upon any particular questions of fact, all of which 
findings shall be written and entered on the record. Armfield v. Brown, 
70—27. 

In injunction proceedings, if the allegations of the complaint arc not denied 
by the answer, it is not error for the judge to refuse to place the cause on the 
docket for a jury trial. Hettrick v. Page, 82 — 65 ; Jones v. Boyd, 80 — 258. 

Demurrer to the evidence withdraws a cause from the jury. Nelson v. Whit- 
field, 82—46. 

A trial by jury is waived by a reference by consent. Grant v. Reese, 82 — 72. 

A reference to hear and determine all the matters in controversy, is a waiver 
of a trial by jury. University v. Lassiter, 83 — 38. 

Se^ 8 398, ante^ and cases cited. 

Judge can only pass upon issues of fact when a jury trial is walTcd. — 

When an issue of fact is raised, involving the merits of the controversy, and 
the defendant, in apt time, demands a jury to try that fact, it is error in the 
presiding judge to refuse such demand, and try the issue himself. Isler v. 
Murphy, 71 — 436. 

The judge can only pass upon issues of fact when a jury trial is waived as re- 
quired by this section. Chastain v. Martin, 81 — 51 ; Leggett v. Leggett, 
60 — 420. 

Findings reviewed, when. — The findings and conclusions of the judge, in 
a case under this section, will not be reviewed except on exceptions aptly taken, 
or when error is distinctly pointed out. Chastain v. CoM-ard, 79 — 543. 

New trial, if granted, must be by a Jury unless again waived.-^ 

Where a trial by jury is waived, and the facts and the law are found by the 
judge, and his conclusions of law are reversed on appeal, the court below can 
not proceed to judgment on the facts found in the first trial, but the case must 
be submitted to a jury, unless otheiwise agreed by the parties. Isler v. Koonce, 
83— 55 ; Ben bow v. Robbins, 72 — 422. 

See. 417 • On trial by the caurt, judgtnent, haw to be given. 
C. C. P., s. 241. 

Upon the trial of a question of fact by the court, its de- 
cision shall be given in writing, and shall contain a state- 



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CLARK'S CODE OF CIVIL PROCEDURE. 229 

ment of the facts found, and the conclusions of law sepa- 
rately ; and upon a trial of an issue of law, the decision 
shall be made in the same manner, stating the conclusions 
of law. Such decision shall be filed with the clerk during 
the court at which the trial takes place. Judgment upon 
the decision shall be entered accordingly. 

Findingrs of fact final. — The finding of the court upon such questions of 
fact is final. McAden v. Banister, 63 — 478. 

The findings of the judge of the superior court on questions of fact properly 
submitted to his decision, in a cause of purely legal cognizance, are as inviolable 
as the verdict of a jury, and can not be reversed on appeal. Greensboro v. " 
Scott. 84—184 ; Burke v. Turner, 85—500. 

Findings on mixed qaestions of fact and law. — A judge of the superior 

court, in passing upon a mixed question of law and fact, should state the facts 
found, and the conclusions of law, separately. Fourshee v. Pattershall, 67 — 453. 
The power of the supreme court to review such mixed questions of law and 
fact, decided by the judge below, is also argued at considerable length, by Rod- 
man, J., in the above case. See, also, Heilig v. Stokes, 63 — 612, and Clegg v. 
White Soapstone Co., 66 — 391. 

Facts not ftallj found*— If the facts are not found fully by the judge, to 
whom a case is referred under this section, so that his conclusions of law can be 
reviewed on appeal, the case will be remanded. Straus v. Beardsley, 79 — 59. 

Called to the attention of the superior court judges.— The require- 
ments of this section are called by the court to the attention of the judges of the 
superior court. Jacobs v. Burgwyn, 63 — 196. 

Sec. 418. Exceptions, how and when taken. C. ۥ P., 8. 
242. 

(1) For the purposes of an appeal, either party may ex- 
cept to a decision on a matter of law arising upon such 
trial within ten days after the judgment, in the same man- 
ner and with the same efifect as upon a trial by jury ; Pro- 
vided, that where the decision does not authorize a final 
judgment, but directs further proceedings before a referee 
or otherwise, either party may except thereto, and make a 
case or exception as above provided in case of an appeal. 

(2). And either party desiring a review, upon the evidence 
appearing on the trial of the questions of law, may at any 
time within ten days after the judgment, or within such 
time as may be prescribed by the rules of the court, make 
a case or exceptions in like manner as upon a trial by jury, 
except that the judge, in settling the case must briefly 
specify the facts found by him, and his conclusions of law. 



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jt^# *.»;' '-;- i-^^ 

i -:•»-»*'.**•• *< tor -aiX ^ *ia» *h<h« i» ^^ i 






L T ' ^L X J ^iL-^tt X. 



Of, * /.''.X'''*^'** i'T :r-e p'A:::::r -r-:- an :«ce of I*w, the 

IK*'/ tv'^-^,*.,* ',:,» f,f «*e<::cn iLree Lcnirei *:i<l eighty-fire, 
•>;y,;, U..'.r^. *A U,h ^frf^r-dani to ai^swer, where the summons 
WH^ \Aiv,%.'A..y ^rred. If ;u'i,?TDeDt be for the defendant 
%%\Hfii Au \^,UH of law, aDd if takirg of an accoant or the 
\fft*^fi of i^uj fac-t be nec^^ary to enable the coort to com- 
p}*'M ii»t; yul^rnetii, a reference or assessment by jnry may 
J/<j t,fiU:ftA,HH yrf3v'uled in section three hundred and eighty- 



CHAI>TER FIVE 



TRIAL BT SEFEREES. 



4V0, All \nn\u*H rcf<»rral)l« bycon- 

wnt. 
4V1, WlM«n TvU^nmcA* may be 

<uirii(MilMi»r(ly ordored. 



Section. 

422. Mode of trial ; effect of re- 

port ; review. 

423. Referees, how chosen ; who 

may be referee; report. 



Htv, 4^0, /iff innupH refei*r(iMe by consent. ۥ ۥ IP., ȥ 244. 

All, or any, of the issues in the action, whether of fact or 
of lnw, or both, may be referred, upon the written consent 
of tho pnrtion, except in actions to annul a marriage, or for 
(llvorround Hopnration. 

Hor»*WM*0 hy roilHOnU — A reference by consent is a waiver of the right to a 
|uiv til'^l. Kluil* V. McKcMfie, 65 — 102 ; Green v. Castleberry, 70—20; Ann- 



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CLARK'S CODE OF CIVIL PROCEDURE. 23 1 

field V. Brown, 70—27 ; Lippard v. Roseman, 70—34 ; Keener v. Finger, 70— 
35 ; Lippard v. Roseman, 72—427 ; Perry v. Tupper, 77 — ^413 ; Atkinson v. 
Whitehead, 77 — 418 ; Britt v. Benton, 79—177 ; Overby v. Fayetteville, 81 — 56; 
Grant v. Reese, 82—72. 

Reference by consent can not be recalled.—A reference, by consent, 
can not be discontinued by the court at its discretion, nor vacated at the de- 
mand of one of the parties. It may terminate by the death of the referee or the 
judge may remove him, for good cause shown, but not otherwise. Perry v. 
Tupper, 77—413- 

The consent of a party once given to a reference can not be recalled. Flem- 
ming V. Roberts, 77 — 415 ; White v. Utley, 86 — 415. 

Entry of order sufficient. — An order of reference by consent entered of 
record is a sufficient compliance with the statute requiring the same to be in 
writing. White v. Utley, 86 — 415. 

Too late to object^ when. — W^hen a case is referred without the written con- 
sent of the parties as required by this section, and both parties appear before the 
referee and examine testimony, and the report is afterwards made and confirmed 
in the superior court, and a judgment given upon it, from which an appeal is 
taken to the supreme court, it is too late to object in that court to the order of 
reference as having been improperly made in the superior court. Johnston v. 
Haynes, 68 — 509. 

Issues should be raised before referenct*. — A reference ought not to be 

ordered before issues are raised between the parties to the cause. Syme v. 
Bunting, 86 — 175. 

Scope of the reference. — On a consent reference the question as to whether 
all the issues raised by the pleadings are to be considered, depends upon the 
agreement of the parties, and the finding of the judge below is final and not 
reviewable. Barrett v. Henry, 85 — 321. 

Reference to state an account. — In an action for account and settlement 
of a partnership, where the defendant admitted the partnership, but all<^ed a 
full settlement, with specified exceptions, the settlement must be taken to h^ de- 
nied, and it is error to grant an order of reference to take an account before the 
trial of issues raised by the pleadings. Price v. Eccles, 73 — 162. 

It is irregular to proceed with a reference to state an account while there are 
matters of defense left open which, if sustained, will bar the claim to have an 
account. Sloan v. McMahon, 85 — 296; Railroad v. Morrison, 82 — 141; 
Com*rs V. Magnin. 85 — 114. 

When it is admitted, or proved, that there came into the hands of the adminis- 
trator assets of the estate, it is proper to order a reference to slate an account of 
his administration, unless some defense is interposed which bars the right to 
such account. Neal v. Becknell, 85 — 299. 

Distinction between a reference to slate an account preparatory to a trial, and 
the trial of a cause by a referee under the Code pointed out. Barrett v. Henry, 
85 — 321; Burke v. Turner, 85 — 500. 

Arbitration and anard. — If a suit be referred by an entry on the docket 
in these words, viz, **lhis case is referred to A. B., who shall summon the 
parties before him and hear the case, and his award shall be a rule of court," 
and the referee files a paper, which he styles an award, whether it is to be 
treated as an award under a rule or a reference under this section, the referee's 
finding of the facts is equally conclusive, as are also his conclusions as to the 
law arising on the facts, except probably where he undertakes to make the ca e 
turn upon a question of law and clearly mistakes it. Gudger v. Baird, 66 — 438. 

The effect of a reference to arbitrators is very different from that of a refer- 
ence under the Code. Arbitrators may choose an umpire; they are not bound 
to find the facts separately from their conclusions of law; they are not bound to 
decide according to law; and their award may be general. Lusk v. Clayton, 
70—184; Keener v, Goodson, 89 — . 



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2 32 CLARK'S CODE OF CIVIL PROCEDURE. 

But if the arbitrators attempt to decide according to law and err, their Bod- 
ing is reviewable. King v. Neuse M'fg Co., 79 — 360; Miller ▼. Bryan, 86 
—167. 

Submission to arbitration and an award constitutes an executory agreement 
and certainly to a common intent is all that is required in the award to admit its 
specific enforcement. Crawford v. Orr, 84 — 246. 

In the absence of impeaching allegations upon the production of an award 
(where the cause is referred to arbitration) the successful party is entitled to 
demand judgment thereon. Moore v Austin, 85 — 179. 

Distinction between a reference to arbitrators and a reference under the Code 
noted by Ashe, J. Keener v. Goodson, 89 — . 

Sec, 421, When reference may be con^ptUsarily ordered* 
C. C. P., ». 24'S. 

Where the parties do not consent, the court may, upon 
the application of either, or of its own motio.i, except where 
the investigation will require the decision of difficult ques- 
tions of law, direct a reference in the following cases: 

(1). Where the trial of an issue of fact shall require the 
examination of a long account on either side; in which case 
the referee may be directed to hear and decide the whole 
issue, or to report upon any specific question of fact involved 
therein ; or, 

Compnlsorj reference can not be ordered, when.— Under § § 420 and 

421, a compulsory reference can not be ordered by the court in a suit on a judg- 
ment confessed by the defendants as executors before tht late civil war, where 
the only matters of defence are payments, made by them in Confederate cur- 
rency during the war, and alleged counterclaims for notes due from the plain- 
tiffs to them as executors. Such a case does not require **the examination of 
a long account on either side," nor is the *' taking of'^an account nfecessary for 
the information of the court." Hall v. Craige, 65 — 51. 

The constitution guarantees the right of trial by jury to every one, and no 
one can be deprived of it except by his consent. Hernheim v. Waring, 79 — 56. 

Probate court can not refer. — The probate court has not a general juris- 
diction as the superior court has, and the power to refer is not only given to 
the superior court by this section, but by the usage of all courts of general ju- 
risdiction from the earliest times. Rowland v. Thompson, 65 — no. 

Distinction between a reference to try a cause and a reference to state 
an account. — Distinction between a reference to stale an account preparatory 
to trial, and the trial of a cause by a referee under the Code, pointed out. Bar- 
rett v. Henry, 85 — 321. 

Referee to report in sixty days.— The provision in § 423, that if the ref- 
erees fail to deliver a report within sixty days from the time the action shall 
be finally submitted, either party may end the reference, applies only to cases 
in which the reference is by consent, and not comptilsory under this section, or 
at least it does not apply to a reference to take an administration account made 
by order of the court. Maxwell v. Maxwell, 67 — 383. 

By "finally submitted" is not to be understood the order of reference or 
ceasing to take testimony, but when the parties have made their arguments or 
declined to do so, or when they have told the referees that the case was submit- 
ted. /<JiV. 

NoTF. — The sixty days limitation is now stricken out of § 423. 



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CLARK'S CODE OF CIVIL PROCEDURE. 233 

Beference upon sham or immaterial issnefi.— Where a reference was made, 
and the referee reported Ihat the defendant had made payments exceeding his 
indebtedness for the land, and exceptions were filed and sustained, on the ground 
that the items allowed were barred by the statute, held that there was a miscon- 
ception of the issue, or the issue made was immaterial. Eubanks v. Mitchell, 

67—34. 

A reference of issues upon sham pleas is erroneous, but if the reference em- 
brace an issue on a good plea, which may be referred, it will be sustained as to 
that while it is reversed as to the others. Flack v. Dawson, 69 — ^42. 

Yfhen a reference slioald not be ordered, — A reference should not be or- 
dered while there are matters of defence left open, which, if sustained, will bar 
the necessity of a reference. Railroad v. Morrison, 82 — 141 ; Cox v. Cox, 
84—138; Sloan V. McMahon, 85—296; Neal v. Becknall, 85 — 299; Com'rsv. 
Magnin, 85 — 114; Com ' rs v, Raleigh, 88 — 120; Douglas v. Caldwell, 64 — 372; 
Price V. Eccles, 73 — 162 ; Humble v. Mebane, 89 — . 

(2). Where the taking of an account shall be necessary 
for the information of the court, before judgment, or for car- 
rying a judgment order into effect ; or, 

Action bj creditors against administrators and executors. -—Debts 

against deceased persons must be sued for by civil action against the personal 
representative, and the summons must bejretumable to a regular term of the 
superior court ; if the defendant denies the debt, but admits assets, the ques- 
tion, debt or no debt, must be tried in the ordinary way ; if the defendant, by 
his answer, denies the debt, and also denies that he has assets applicable to the 
debt, then the debt being first established an interlocutory order should be made, 
declaring that fact, and directing a reference, under this section, to ascertain 
the amount of the debts (and their several classes, in respect to administrations 
since July ist, 1869, acts of 1 869-' 70, chap. 58,) and the amount of the assets 
from all sources. Upon the coming in of the report, after disposing of exceptions, 
a final judgment will be entered in favor of all creditors respectively, who have 
proved their debts, to the part of the fund to which they may be severally enti- 
tled, for which executions may issue ** de bonis propriis,** as upon a claim in 
equity. Heilig v. Foard, 64 — 710. 
Conipnlsory reference can be made to state an aecoiint, when.— Where 

the facts connected with the management of a trust estate are in dispute, and 
the rights of the parties can not be readily ascertained without an account, in 
such case the rule adopted by courts of equity is a reference to the master, and 
if there is dissatisfaction with the report the matter may be brought before the 
court by proper exceptions. Martin v. Wilborne, 66 — 321. 

Where the object of the action is to have the defendant declared a trustee, 
and the statement of his account as executor is necessary to determine his lia- 
bility as such, the superior court has power to order a reference to take an ac- 
count. Cain V. Nicholson, 77 — 411. 

In an action to impeach a former decree, brought by a guardian, a reference 
may be ordered to ascertain alleged expenditures for benefit of ward before 
judgment* Sutton v. Schonwald, 80 — 20. 

A compulsory reference is proper to have an account stated. Com'n r. 
Magnin, 85 — 114 ; Chalk v. Bank, 87 — 200. 

A compulsory reference may be ordered where the taking of an account shall 
be necessary for the information of the court before judgment. Leak v, Cov- 
ington, 87 — 501. 

In a case involving the settlement of a complicated accotint, § § 421 and 
422 require that it be referred to referees to state an account, and oojections to 
their report must be made by way of exceptions to it, and neither party has 
the right to require the facts to be passed upon by a jurv. Klutts v. McKcn- 
zie, 65 — 102. This case is overruled by Green v. Castleberry, 70—20; Arm- 

30 



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234 CLARK'S CODE OF CIVIL PROCEDURE. 

field V. Brown, 70 — 27: Keener v. Finger, 70—35; Atkinson v. Whitehead, 
77 — 418, and other cases cited under § § 398, 416 and 420, ante. 

Reference to state an account will not be ordered, when.— Where the 

statute of limitations is pleaded, it should be passed upon before a reference 
is ordered to state an account. Cox v. Cox, 84 — 138. 

A reference to take an account is irregular where a defence is set up to the 
entire action, and the allegations of fact if found to be true would defeat the 
plaintiff's recovery, and in such case the court should direct the issues to be 
tried ; but otherwise, where the defence relied on is no obstacle to the recovery. 
Humble v. Mebane, 89 — . 

See cases cited under § 420, and the preceding sub-section of this section. 

If objection to reference 1r not made at the time. — An order of reference 
to take a partnership account will not be reversed because made before the ^- 
istence of the partnership has been established, when no exception was taken 
at the time when the reference was ordered. McPeters v, Ray, 85 — ^462. 

Can not be ended bj notice gl^on. — A reference made by the court to take 
an account to be used in an action pending before it, is not such a reference as 
can be ended at the election of either party upon the notice prescribed in § 423. 
Green v. Green, 69 — 294. 

Note. — The proviso allowing the reference to be terminated upon notice is 
stricken out of § 423. 

(3). When the case involves a complicated question of 
boundary, or one which requires a personal view of the 
premises ; 

(4). Where a question of fact ether than upon the plead- 
ings shall arise, upon motion or otherwise, in any stage of 
the action. But the compulsory reference under this sec- 
tion shall not deprive either party of his right to a trial of 
the issues of fact arising on the pleadings by a jury. 

Either part jr entitled to a jury trlal^lfhen*— Where there is a compul- 
sory reference either party is entitled to a jury trial if demanded in apt time, 
otherwise it is waived. Armfield v. Brown, 70 — 27 ; Green v. Caslleberry. 
70 — 20 ; Keener v. Finger, 70—35 ; Atkinson v. Whitehead, 77 — 418. 

Quere^ whether there can be a compulsory reference as to damages on his in- 
junction bond ? Gold Company v. Ore Company, 79 — ^48. 

See cases cited under § § 398, 416 and 420, ante. 

Fees of referee^ how taxed. — The referee's fees, in the absence of agree- 
ment, must be taxed against the losing party. The court can not order one- 
half thereof to be paid by each party. Wall v. Covington, 76 — 150. 

Sec» 422* Mode of trial ; effect of report; review. C, C P., 
8. 246. 

The trial by referees shall be conducted in the same man- 
ner as a trial by the court. They shall have the same power 
to grant adjournments and to allow amendments to any 
pleadings, and to the summons, as the court upon such 
trial, upon the same terms and with like effect. They shall 
have the same power to preserve order and punish all vio- 



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CLARK'S CODE OF CIVIL PROCEDURE, 235 

lations thereof upon such trial, and to compel the attend- 
ance of witnesses before them by attachment, and to punish 
them as for contempt for non-attendance or refusal to be 
sworn o. testify, as is possessed by the court. They must 
state the facts found and the conclusions of law separately ; 
and their decision must be given, and may be excepted to 
and reviewed in like manner, and with like effect in all re- 
spects as in cases of appeal ; and they may in like manner 
settle a case on exceptions. The report of the referees upon 
the whole issue shall stand as the-decision of the court, and 
judgment may be entered thereon upon application to the 
judge. When the reference is to report the facts, the report 
shall have the effect of a special verdict. 

Powers of referee. — A referee has power to enforce obedience to his rul- 
ings, on the trial of the issues before him, just as the court would have upon 
the trial before it. But a reference under supplementary proceedings to take 
testimony is not a trial, and the referee therein can not punish a witness in re- 
fusing to answer questions, and such witness must be reported to and punished 
by the court making the reference. La Fontaine v. Southern Underwriters, 
83—132. 

Referee's report and its requisites.— In a reference to take an account, 
the referee should state distinctly and separately his conclusions as to law and 
fact. Klutts V. McKenzie, 65 — 102. 

It is the duty of the referee to state positively and distinctly all the facts con- 
stituting the ground of defence, and not leave to inference what is the precise 
fact intended to be found. Conclusions of law and fact mutt be separately 
stated. Earp v. Richardson, 75 — 84. 

A report of a referee that does not state all the items of the account between 
the parties will be set aside for vagueness. McCampbell v. McClung, 75 — 393. 

The evidence in writing, upon which facts are found by a referee, must ac- 
company his report. Cain v. Nicholson, 77 — 411. 

"Where, by the terms of a reference, the referee's findings of fact are to be 
conclusive, it is not necessary to send up all the evidence taken, but only so 
much as relates to findings excepted to as wanting the support of any evidence, 
or as resulting from the rejection of proper evidence, or the reception of im- 
proper evidence, against objection in apt time. In such cases the exception 
should set forth the evidence received or rejected or the facts found without 
evidence. Morrison v. Baker, 81 — 76. 

A referee should report in writing all the testimony taken by him and file 
copies of all documents adduced in evidence and considered by him. Com'rs 
v. Magnin, 85 — 114. 

Referees should exercise their own judgment in statine an account, and not 
merely adopt an account stated by other parties. The items should be given 
in detail and not simply the result of an adjustment. Ibid, 

When exception is made to the referee's failure to report evidence, it may 
be ordered to be produced, if it has been preserved in writing, but if it has not 
been preserved, a recommittal of the report is necessary. Ibid, 

Where the report of a referee in the statement of an account does not con- 
form to the order of reference, the court will set it aside with instructions to 
observe strictly, in restating the account, the method pointed out in the order 
of the court. Burke v. Turner, 89 — . 



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CLARK'S CODE OF CIVIL PROCEDURE. 



Findings of facU — The referee's findings of facts are equally conclusive 
with those of an arbitrator Gudger v. Baird, 66 — 438. 

The findings of fact in a referee's report are presumed to be right, unless 
shown to be wrong. Green v. Jones, 78 — 265. 

The report of a referee, under the Code, is not in the nature of a special ver- 
dict and conclusive as to facts, but is reviewable on exceptions. Lawrence v. 
tiyman, 79 — 209. 

Where the report does not state fully the findings of fact, so the conclusions 
of law thereon may be reviewed, the case must be remanded. Norment v. 
Brown, 79 — 363. 

Where there is a consent reference, with full power in the referee to deter 
mine the case upon the law and facts, the facts found by the referee are not 
reviewable. Manner v. McAdoo, 86 — 370. 

In an action at law the supreme court can not look into the evidence to sec 
what facts it warranted the referee in finding. Patterson v. W^adsworth, 89—. 

Referee's report, how reviewed. — The report of a referee is reviewed not 
by an appeal but by exceptions taken to the report. Green v. Castleberry, 
79—20. 

Issues of fact raised by exception to referee's report.— It is not the duty 
of a judge, in passing on exceptions, to decide all questions of fact without a 
jury. On the contrary, if the facts depend upon doubtful and conflicting testi- 
mony, he may cause issues to be framed, and submitted to a jury for information. 
Maxwell v. Maxwell, 67 — 383. 

The judge may submit issues of fact raised by exceptions to a referee's report, 
to a jury. Gold Company v. Ore Company, 79—48. 

Exceptions to report. — If no exception is made before a referee and his 
report is returned to the term, the parties must be allowed to except then. And 
when a report is filed under a compulsory reference and exceptions made thereto, 
cither party has the right to have the issues thus made tried by a jury. Green 
V. Castleberry, 70 — 20. 

Where the exception is, that the referee did not admit certain evidence, and 
the case does not show that such evidence was competent or material, the excep- 
tion will be overruled. Shehan v. Malone, 71 — 440; Vestal v. Sloan, 83 — 553. 

A party excepting to the report of a referee to whom it was referred to take 
an account, must designate particularly the charge or credit excepted to, and 
refer the court distinctly and clearly to the ground of his exception. Excep- 
tions, unaccompanied by such statement of facts, will be overruled ; as this court 
will not, nor will any court of appeals, examine every item in the account, and 
the evidences bearing on it, upon a general allegation of error. Whitford v. 
Foy, 71 — 527; Brumble v. Brown, 71—513; Green v. Castleberry, 77 — 164; 
Currie v. McNeill, 83 — 176. 

An exception to the report of a referee should discriminate and point out 
specifically the faults complained of. An exception ** that the referee ought to 
Jiave found as a conclusion of law that the plaintiff recover nothing," is not 
sufficient Suit v. .Suit, 78 — 272. 

An exception that a referee "does not report many specific objections to par- 
ticular items in an account" taken in the inquiry before him, is too indefinite to 
be passed upon on appeal. Morrison v. Baker, 81 — 76. 

Evidence can not be heard to support an exception not made before the referee. 
Overby v. Fayetteville, 81 — 56 ; Nash v. Taylor, 2 Hay., 174. 

Exceptions to a referee's report should be filed at the term to which the report 
is made. University v. Lassiter. 83 — 38 ; but if this is not done, the court can 
in its discretion allow exceptions to be filed at any time before jurdgment upon 
the report. State v. Peebles, 67 — 97. 

It is not error to overrule exceptions to the report of a refprec, which are 
immaterial or not sustained by the facts. Murphy v. Harper, 84 — 189. 

It is error for the judge to pass upon exceptions to an unfinished report. 
While V. Utley, 86—415. 

Exceptions to a report may be made, as a matter of right, at the term of the 



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CLARK'S CODE OF CIVIL PROCEDURE. 237 

court to which the report is submitted, after that it is discretionary with the 
court whether exceptions shall be filed or not. Long v. Logan, 86 — 535. 

A referee's report as to the value of board and lodging, when there is no 
agreement as to price, will not be disturbed. Wellborn v. Simonton, 88 — 266. 

^ Action of the court on the report. — § § 420 and 421 are to be construed 
and collated with section 18 of article iv of the constitution, from which it 
will be seen that a trial by reference is only ancillary to the trial by the court, 
and the finding of the referee, when reviewed and corrected pursuant to § § 422 
and 423, becomes the judgment of the court. Armfield v. Brown, 70 — 27. 

lo the supreme court* — The supreme court reviews decisions of fact by a 
judge or referee, as a court of appeals, and not as a court of original jurisdiction. 
Green v. Castleberry, 77 — 164. 

Findings of fact by the judge are reviewable in the supreme court only in 
equity cases. Jones v. Boyd, 80 — 258. 

AwaiMl of arbitrators. — Arbitrators are not bound to decide according to 
law, and their findings of fact are conclusive. Gudger v. Baird, 66 — 438 ; Lusk 
v. Clayton, 70 — [84 ; Keener v. Goodson, 89 — . 

Where an arbitr&tor intends to be governed by rules of law, but misconceives 
them, he may be reviewed. Miller v. Bryan, 86 — 167 ; King v. Ncuse M'f'g 
Co., 79 — 360. 

An award in writing, like a written contract, can not be added to or varied. 
It speaks for itself, and is not open to proof of the ** ui^derstanding'* of the arbi- 
trators as to its effect. Scott v. Green, 89 — . 

Sec. 423. Referees, how chosen; who may be referee; 
report. C. C. P., s. 247. 

In all cases of reference the parties as to whom issues 
are joined in the action (except when the defendant is an 
infant or an absentee) may agree in writing upon a person 
or persons, not exceeding three, and a reference shall be 
ordered to him or them, and to no other person or persons. 
And if such parties do not agree, the court shall appoint 
one or more referees, not more than three, who shall be free 
from exception. And no person shall be appointed referee 
to whom all parties in the action shall object. And no 
judge or justice of any court shall sit as referee in any action 
pending in the court of which he is judge or justice, and 
not already referred, unless the parties otherwise stipulate. 
The referee shall make and deliver a report within such 
time as may be ordered by the court. The report of the 
referee shall be made to the clerk of the court in which the 
action is pending; either party, during the term or upon 
ten days' notice to the adverse party out of term, may move 
the judge to review such report, and set aside, modify or 
confirm the same in whole or in part, and no judgment 



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fcLili l-e cttityed on acj refereDce except by onkr of the 

CJrM U UrmimMie tfc* r< lf rga g <^ — ^-\ r^'tresrr sri^rtf b*r lie coat to 

A ^/iT-T 'ji.'. 1 'A *:W,', V. trAz rrf-imic ai:cr ii-* rrp»:c-: :^ ibe nefcree hss bee» 
■ui.-:.*: *--..C ;je lAi ijtr: »:z^*r;.:jjc:.i '-iftrc's. A'=.i.cjid r. Er:*»-E^ 70—27. 

A;*.*ar Vjc y*r.^:k iaic -i^jt »a-*T*-i tit^ir n^: ic a t^tt tral ry cccscstirg to 
a r*->-rcr 'Jt- 'JL-frr ca^i e,'X if"€r»ar::5 w-iLira^r sec* ■x:i eg ari iccixad x jzij, 
%fA ustx t,'*^ 'jr^r. yrm^cz v^ '::^i<r^!— ze ii, a: us "^^scryrt-e Arsircii ▼. Brown, 
7>— ^ Ftrrr t. T-->tr. 77—4-3- 

V» :^^t ;/ar .*r* to ax. k,'.Y,»L agrt* to refer the n-.arter ia ccctrrrersr to a referee, 
\i.K.t a>.*^-t c/.T, •.!,..« :;r.:.; ine oficr of reference is coopliei wiUi by a foS 
rr;x.^- Ir. vs'.ii caw: aj: o^ tctioc of oce orf ihc parries :o a re-referenoe to ibc 
wi-">^ r^*:T** wa\ f-r.-^^rrhr cAern:>rd- F. erring t. Ro-b<rt<^ 77 — 415. 

>'/TS. — 7 /..v \K'f.'/^ as now an^er.'ied nc.tber requires tbe report, asfocmerir, 
V> *>< f/>3d .t wxty lavs, dot permits the parties to tcmiiiiate liie reference 00 

Ueftremtt »et asf4e« — The cocrt can, m its disCTction, set sside m reference 
Uf We an a/^y^'Jiit, after report made ai:d exceptions Eied, and proceed to try 
tte ca>e. fcuu.ee ▼. Varies, 79 — 51. 

lpf«lat««et ef «■ etUraej is tbe aetieB « arMtrater.— ^i<^. 

Wf*e4*er trie referer.oe of an action by consent to an attorney in the cause, for 
irtjt*riL*ifjn revokes his authority as attorney? Williams ▼. Thomas, 78 — 47. 

Repert set aiMe* — It is the doty of a referee to state positively and definitely 
all the fa/.U constituting the grounds of defence, and not leave to inference what 
is the precise fact intended to be found. Conclusions of law and fact most be 
Mated sej/arately ; otherwise the appellate court can not review the referee's coo- 
cluHi'^ns of law, its peculiar province, and the report of the referee will be set 
aside as l^ng defective, and the cause remanded. Earp v. Richardson, 75 — 84. 

A rejKjrt of a referee that does not state all the items of the account between 
the parlies, will \jc set aside for vagueness. McCampbell v. McClnng, 75 — 393. 

Ef ideBfe fthoold aeeonpan J report* — The evidence in writing upon which 
facts are found by a referee must accompany his report, Cain v. Nicholson, 
77—4". 

Eiceptions, wheD to be filed.— Exceptions must be filed at the term at 
which the report is submitted. It is in the discretion of the judge whether they 
arc permitted to be filed at a subsequent term or not. Long v. Logan, 86 — 535, 

.S>/', generally, cases cited under preceding sections of this sab-chapter. 



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CLARK'S CODE OF CIVIL PROCEDURE. 



239 



CHAPTER SIX. 



MANNER OF ENTERING JUDGMENT. 



Section. 

424. Judgment may be for or 
against any of the parties ; 
may grant defendant af- 
firmative relief ; complaint 
may be dismissed for neg- 
lect to prosecute action ; 
judgment against married 
woman. 

426. The relief to be awarded to 
the plaintiff. 

426. Judgment in certain causes to 

be a conveyance of title. 

427. Judgment to be regarded as 

a deed and to be regis- 
tered. 

428. Copy of judgment from 

register's office to be evi- 
dence. 

429. Judgment to be registered 

as deeds. 



431. 



Skction. 

430. Rates of damages where 
damages are recoverable. 
Judgment in action for re- 
covery of personal prop- 
erty. 

432. What judge to approve judg- 

ments, orders and decrees. 

433. Judgments to be docketed 

and indexed ; judgments 
at same term, when held 
to be docketed. 

Judgment roll. 

Judgments, when and how 
to be docketed; secured on 
appeal. 

Judgments in supreme court 
may be docketed in supe- 
rior court; lien of judg- 
ment ; when transcript may 
be obtained. 



434 
435, 



436. 



Sec. 424. Judgment may be for or against any of the par- 
ties; may grant defendant affirtnatire relief; complaint 
may be dismissed for neglect to prosecute action ; judg- 
ment against married woman. C. C. T., s. 248. 

(1.) Judgment may be given for or against one or more 
of several plaintiffs^ and for or against one or more of several 
defendants; and it may determine the ultimate rights of 
the parties on each side, as between themselves; 

Under the Code the courts arc required to frame their judgments so as to pro- 
tect both the legal and equitable rights of the parties. Hutchinson v. Smith, 

68—354. 

When a party is sued by a firm, he may have judgment in the action on a 
counterclaim against the partnership, or against either of the partners. Sloan v. 
McDowell, 71 — 356. 

A judgment may determine the ultimate rights of the parties on each side be- 
tween themselves as well as between the adverse parties in the litigation. Hare 
V. Jemigan, 76 — 471 ; Clark v. Williams, 70 — 679 ; Huches v. Boone, 81 — 204. 

When an action is brought for an injury caused by the separate acts of par- 
ties, having a common interest adverse to the plaintiff, the jury may assess sepa- 
rate damages as to each. Long v. Swindell, 77 — 176. 

A judgment rendered in favor of a plaintiff and an affirmative one in favor of 
the defendant, though written and attested separately, constitute but one judg- 
ment. Hall Y. Younts, 87 — 285. 



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240 CLARK'S CODE OF CIVIL PROCEDURE. 

(2). ADd it may grant to the defendant any afiSrmative 
relief to which he may be entitled ; 

Whenever the answer sets up a counterclaim, the defendant, if he recover, is 
entitled to any judgment required to make it effectual. Walsh v. Hall, 66 — 233. 

A defendant is entitled to set up as many defences as he may have, legal or 
equitable, and to have such relief, affirmative or other, as shall be legally author- 
ized on the facts constituting his defence. Melvin v. Stephens, 82 — 283. 

(3). Id an action against several defendants, the coan 
may, in its discretion, render judgment against one or 
more of them, leaving the action to proceed against the 
others, whenever a several judgment may be proper; 

When landlord and tenant are sued together in an action to recover land, and 
the tenant fails to answer or to verify his answer, the complaint being verified, 
there may be a judgment entered against him, but no execution can issue until 
the trial of the issue made up by the landlord. Harkey v. Houston, 65 — 137. 

The rights and liabilities of the defendants, not only to the plaintiff, but to 
each other, may be determined in the action, and should be embraced in the 
judgment. Clark v. Williams, 70 — 679 ; Hare v. Jemigan, 76 — ^471. 

It is against the practice to sever the facts of a demand in the complaint and 
enter judgment for one portion, and order a reference to ascertain the amount 
of the other portion for judgment as to that. Depriest v. Patterson, 85—376. 

(4). The court may also dismiss the complaint, with casts 
in favor of one or more defendants, in case of unreasonable 
neglect on the part of the plaintiff to serve the summons on 
other defendants, or to proceed in the cause against the de- 
fendant or defendants served. In an action brought by or 
against a married woman, judgment may be given against 
her as well for costs as for damages, or both, for such costs 
and for such damages, in the same manner as against other 
persons, to be levied and collected of her separate estate, 
and not otherwise. 

Jadgment on an award of arbitrators,— It was not the intention of the 
Code to deprive parties of the right to refer all matters in controversy to arbi- 
trators, with power to make an award, which should be a rule of court. This 
is merely an agreement to confess judgment according to the award. If the par- 
ties have no suit in court concerning the matters referred, the court will not 
enforce it as a rule of court, but will leave the parties to their remedy on the 
arbitration bond. Lusk v. Clayton, 70 — 184. 

Where a cause is referred to arbitrators, the submission to be a rule of court, 
the court enters judgment according to the award. Keener v. Gcodson, 89 — . 

See cases on ** arbitration" cited under § § 420 and 422, ante. 

Validity of Jndgrments. — A judgment is not void because no complaint has 
been filed. Little v. McCarter, 89 — . 

An omission to sign a judgment will not avoid it as to strangers. Rollins v. 
Henry, 78 — 342. 

The validity of a judgment is not affected by the failure of a judge to sign 



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CLARK'S CODE OF CIVIL PROCEDURE. 24I 

it, since the statute providing for such signing is merely directory. Keener v. 
Goodson, 89 — ; Matthews v. Toyce, 85 — 258. 

Note. — The act requiring the signature of the judge to judgments seems re- 
pealed, except in cases where infants are parties to uie action, and in special 
proceedings. 

See § 288, anie^ and cases cited. 

Interest on Jndgrments* — Every judgment or decree, except for costs, shall 
bear interest till paid. Long v. Long, 85 — 415. 

•S^^ § § 529, 530 and 531, posty and cases cited. 

An order taxing costs is a jndpnent.— An ordfer taxing costs against a 
party in favor of the officers of the court, is, in eflfect, a judgment. Sheppard 
V. Bland, 87—163. 

Presumption of regrnlarity* — In the absence of proof to the contrary, a 
judgment is presumed to have been properly and regfularly taken. Wiseman v. 
Penland, 79 — 197. 

Judgements nunc pro tunc — The court will, in general, permit a record to 
be amended, and a judgment to be entered nunc pro tunc when it has been de- 
layed by the act of the court or the clerk. Long v. Long, 85 — 415 ; Bright v. 
Sugg, 4 Dev. , 492. 

Entered in vacation* — ^Judgment may be entered in vacation upon a ver- 
dict obtained in term time. Harrell v. Peebles, 79 — 26. 

Also, by consent of parties, without a verdict. Hervey v. Edmunds, 68 — 243. 

A judge has no power to render judgment after the expiration of the term of 
court without the consent of parties, except in cases where the law clothes him 
with jurisdiction at chambers. Hardin v. Ray, 89 — . 

Against a dead man* — ^Judgment can be entered where defendant dies after 
verdict, without making his personal representatives or heirs parties. Beard v. 
Hall, 79—506. 

But judgment entered by default final against a dead man, will be vacated 
on motion. Burke v. Stokely, 65 — 569. 

Distinction lietween erroneous and irreguiarJudgments*~The distinc- 
tion between an erroneous and an irregular judgment traced by Reade, J. 
Wolf V. Davis, 74—597. 

Judgment upon verdict rendered to tlie clerk* — Where counsel on both 
sides agree that the clerk may take the verdict of the jury, and afterwards such 
agreement is rescinded with notice to the clerk, but not to the presiding judge, 
a judgment of the court, rendered in ignorance of such rescission, is not irregu- 
lar. Fickey v. Merrimon, 79 — 585. 

Judgment as to part and continuance as to tlie rest*— Judgment can be 
taken for so much of the plaintiff's demand as is admitted by the answer and 
the case continued as to the rest. Parker v. Bledsoe, 87 — 221. 

Judgments set aside* — A judgment can only be reviewed upon some direct 
proceedings instituted for that purpose. Weeks v. Weeks, 79—77. 

A court may always vacate or modify its judgment during the term at which 
it is rendered. Halyburton v. Carson, 80 — 16. 

Where a final decree has been entered in a proceeding and carried into effect, 
the only mode of testing its validity is by a new action commenced by sum- 
mons. England v. Gamer, 84 — 212; Covington v. Ingram, 64 — 123; Thaxlon 
V. Williamston, 72 — 125; Peterson v. Vann, 83 — 118. 

Judgments against a corporation rendered upon process issued after it ceased 
to exist are of no validity, and may be impeachea by any party interested in 
the administration of its assets. Dobson v. Simonton, 86—492. 

A judgment can be set aside for irregularity, only at the instance of the party 
prejudiced. Hinsdale v. Hawley, 89—87 ; Jacobs v. Burgwyn, 63 — 196 ; Rol- 
ms V. Henry, 78 — 342. 

See § § 273, 274 and 412, ante^ and cases cited. 

31 

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242 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 425. The relief to be awarded to the plaintiff. C. C. P., 
8. 249. 

The relief granted to the plaintiff, if there be no answer, 
can not exceed that which he shall have demanded in bis 
complaint; but in any other case the coart may grant him 
any relief consistent with the case made by the complaint 
and embraced within the issue. 

If no complaint is filed. — A judgment is not void because no complaint 
has been filed. Little v. McCarter, 89 — ; Vick v. Pope. Si — 22; Leach v. 
Railroad, 65 — 485. 

If an answer is filed. — The judgment, where there is an answer, maybe 
for any relief embraced in the issues. Jones v. Mial, 79 — 164. 

If case proven differs wholly from the complaint. — Where the proof es- 
tablishes a case wholly different from the one alleged, and inconsistent there- 
with, no relief can be granted nor amendment permitted, and the action must 
fail. Carpenter v. Huffsieller, 87—273. 

Relief to be awarded the plalntllf. — A tenant in common in personalty 
can not recover specific goods from a co>tenant ; his remedy is by partition. 
Powell V. H-11, 64—169. 

Where a guardian lent the funds of his wards to a firm of which he was a 
member, he may sue upon the partnership note and follow the fund into whose 
hands soever it may have passed. Gudger v. Baird, 66 — 438. 

The distinction between the forms of actions having been abolished, it would 
defeat the purpose of that provision if the defendant were allowed to avail him- 
self of an objection founded on such distinction. Therefore, when a complaint 
sets out a cause of action in assumpsit, and the proof shows one in trover^ the 
plaintiff is entitled to judgment. Gates v. Kendall, 67 — 241. 

A plaintiff who sues for claim and delivery of personal property can not, 
under the prayer for other relief, without amending his complaint, recover 
damages, when the facts show that the defendant did not have the property in 
possession when suit was brought. Haughton v. Newberry, 69 — 456. 

Where the plaintiff sets out the facts of, and asks relief upon, a special con- 
tract, yet he can, without amending his complaint, recover his damages as on 
the common counts in general assumpsit. Jones v. Mial, 82 — 252. 

Under the Code practice, a party is not restricted to the specific relief de- 
manded by him, but may have any additional and different relief which the 
pleadings and facts proven show to be just and proper. Knight v. Hough- 
taling, 85 — 17. 

See § 233, 234, 235, 236, ante^ and cases cited. 

Sec. 420. Jv figment in certain cases to he a cwiveyatice of 
title. B. C, c. 32, s. 24. 1850, c. 107, s. 1. 1874-^5, e. 
. 17,s.l. 

In any action, wherein the court shall declare that a party 
is entitled to the possession of property, real or personal, 
the legal title whereof may be in another or others, parties 
to the suit, and the court shall order a conveyance of such 
legal title to him so declared to be entitled, or where, for 
any cause, the court shall order that one of the parties hold- 
ing property in trust shall convey the legal title therein to 



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CLARK'S CODE OF CIVIL PROCEDURE. 243 

be held in trust to another person, althoagh not a party, 
the court, after declaring the right and ordering the con- 
veyance, shall have power, also, to be used in its discretion, 
to declare in the order then made, or in any made in the 
progress of the cause, that the effect thereof shall be to 
transfer to the party to whom the conveyance is directed to 
be made, the legal title of the said property, to be held in 
the same plight, condition and estate as though the convey- 
ance ordered was in fact executed ; and shall bind and en- 
title the parties ordered to execute or to take benefit of the 
conveyance, in and to all such provisions, conditions and 
covenants as may be adjudged to attend the conveyance, in 
the same manner and to the same extent as the convey- 
ance would if the same were executed according to the 
order. And any party taking benefit under the judgment 
may have the same redress at law on account of the matter 
adjudged as he might on the conveyance, if the same had 
been executed. 

Decree br consent* — A decree by consent is merely a conveyance between 
the parties, binding them and their privies in estate, but it is open to the latter 
to impeach it for fraud. Rollins v. Henry, 78 — 342. 

Decree eonflrminr sale. — A final decree confirming a sale and declaring 
that the effect of the decree shall be to convey the title as fully as if a deed had 
been executed, is in accordance with this section, and can not be impeached, 
except by a civil action commenced by summons. Thaxton v. Williamson, 
72—125. 

Decree directlngr conreyanee upon payment of a certain snm.— Where 

a decree directs a re-conveyance of land upon payment of a certain debt, to se- 
cure which the land has been conveyed, the land remains subject to the control 
of the court, and the title does not pass till the payment, notwithstanding the 
administrator of the creditor enters satisfaction of the debt upon the docket upon 
receipt of the debtor's note for the amount. Davis v. Rogers, 84 — 412. 

Sec* 427* Judgment to he regarded as a deed, and to he 
registered. B. C, c. 32, 8. 25. 1850, c. 17, 8. 3. 1874-^5, 
c. 17, 8. 2. 

Every judgment, in which the transfer of title shall be so 
declared, shall be regarded as a deed of conveyance, execu- 
ted in due form and by capable persons, notwithstanding 
the want of capacity in any person ordered to convey, and 
shall be registered in the proper county, under the same 
rules and regulations as may be prescribed for conveyances 



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244 CLARK'S CODE OF CIVIL PROCEDURE. 

of similar property executed by the party; and all laws 
which may be passed for extending the time for registration 
of deeds shall be deemed to include such judgments, pro- 
vided the conveyance, if actually executed, would be so in- 
cluded. 

Sec, 428, Copy of Judgment from register's office to be etH- 
detice. B. C, c. 32, s. 26. 1850, c. 107, s, 3. 1874''5, e. 
17,8.2. 

In all legal proceedings touching the right of parties de- 
rived under such judgment, a certified copy thereof from the 
register's books shall be evidence of its existence and of the 
matters therein contained, as fully as if the same were proved 
by a perfect transcript of the whole case. 

Sec, 429. Judgment to be registered as deeds. R, C, c. 32, 
s, 27. 1850, c, 107 y 8. 4. 1874''5, c, 17, 8, 4. 

The party desiring registration of such judgment shall 
produce to the register a copy thereof, certified byv the clerk 
of the court in which it is enrolled, under the seal of the 
court, and the register shall record both the judgment and 
certificate. 

Sec, 430. Rates of dam^ages where damages are recover^ 
able, C, C, P., s. 250. 

Whenever damages are recoverable, the plaintiff may 

claim and recover, if he show himself entitled thereto, any 

rate of damages which he might have heretofore recovered 

for the same cause of action. 

Sec, 431, Judgment in action for recovery of personal 
property, C. C. P., s. 251. 

In an action to recover the possession of personal prop- 
erty, judgment for the plaintiff may be for the possession, 
or for the recovery of possession, or for the value thereof, in 
case a delivery can not be had, and the damages for the 
detention. If the property has been delivered to the plain- 
tiff, and the defendant claims a return thereof, judgment 
for the defendant may be for a return of the property, or 
for the value thereof in case a return can not be had, and 
damages for taking and withholding the same. 



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CLARK'S CODE OF CIVIL PROCEDURE. 24S 

Judgment for damages^ Wben. — In actions to recover personal property, 
when tne plaintiff has not invoked the aid of the provisional remedy of claim and 
delivery, his judgment, if he succeeds, is for the possession of the property or 
for its value and damages for its detention, as in the old action of detinue. Jar- 
man V. Ward, 67 — 32. 

A judgment in an action to recover specific personal property is no bar to a 
subsequent action against the same parties for damages for the taking and deten- 
tion of such property. Woody v. Jordan, 69 — 189. 

Interest. — Interest is not allowed as a matter of law in an action of claim and 
delivery, though the jury can, if they wish, allow interest on the value of the 
property, from the time it was taken, as damages. Patapsco v. Magee, 86 — 350. 

•>^^ §8 321, 322, 323, 326, 333, 385, 386, 3B7, 388, 390 and 409, and cases 
cited. 

Sec* 432* Wh€U Judge to approve JudgmentSf orders and 
decrees. ISrG-'r, c. 233, s. 3. 1879, c. 63. 1881, c. 51. 

In all cases where a judgment, decree or order of the 
superior court is required to be approved by a judge, it shall 
be approved by the judge having jurisdiction of receivers 
and injunctions. 

Sec. 433. Judgments to be docketed and indexed ; Judg- 
metUs at the satne term, when held to he docketed. C. C. 
r., s. 252. Rule XVIII. 

Every judgment of the superior court aflfecting the right 
to real property, and any judgment requiring in whole or 
in part the payment of money, shall be entered by the clerk 
of said superior court on the judgment docket of said court. 
The entry shall contain the names of the parties, and the 
relief granted, date of judgment and date of docketing; and 
the clerk shall keep a cross index of the whole, with the 
dates and numbers thereof. All judgments rendered in any 
county by the superior court thereof, during a term of the 
court, and docketed during the same term, or within ten 
days thereafter, shall be held and deemed to have been ren- 
dered and docketed on the first day of said term. 

Executions fk*oni the sapreme court* — An execution issuing from the 
supreme court, upon a judgment obtained therein, to a county in which the 
defendant has land, is a Uen upon the land from its teste, Rhyne v. McKee, 
73—259. 

See § 435, post, and cases cited. 

Note. — This decision is probably not of any effect since the enactment of 
§ 436, post. 

Sec. 434. Judgment'roU. C. C. JP., s. 253. 

Unless the party or his attorney shall furnish a judg- 
ment-roll, the clerk, immediately after entering the judg- 



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246 CLARK'S CODE OF CIVIL PROCEDURE. 

ment, shall attach together, and file the followiDg papers, 
which shall constitute the judgment-roll : 

(1). In case the conaplaint be not answered by any de- 
fendant, the summons and complaint, or copies thereof, 
proof of service, and that no answer has been received, the 
report, if any, and a copy of the judgment; 

(2). In all other cases, the summons, pleadings, or copies 
thereof, and a copy of the judgment, with any verdict or 
report, the offer of the defendant, exceptions, case, and all 
orders and papers in any way involving the merits and 
necessarily affecting the judgment. 

Sec. 435* fTudgments, when and how to be docketed; «e- 
cured on appeal. C C P., 8. 2S4. 

Upon filing a judgment-roll upon a judgment affecting 
the title of real property, or directing in whole or in part 
the payment of money, it shall be docketed on the Judg- 
ment docket of the superior court of the county where the 
judgment-roll was filed, and may be docketed on the judg- 
ment docket of the superior court of any other county upon 
the filing with the clerk thereof a transcript of the original 
docket, and shall be a lien on the real property in the 
county where the same is docketed, of every person against 
whom any such judgment shall be rendered, and which he 
may have at the time of the docketing thereof in the county 
in which such real property is situated, or which he shall 
acquire at any time thereafter, for ten years from the date 
of the rendition of the judgment. But the time during 
which the party recovering or owning such judgment shall 
be, or shall have been, restrained from pi oceeding thereon 
by an order of injunction, or other order, or by the opera- 
tion of any appeal, or by a statutory prohibition, shall not 
constitute any part of the ten years aforesaid, €is against the 
defendant in such judgment, or the party obtaining such 
orders or making such appeal, or any other person who is 
not a purchaser, creditor or mortgagee in good faith. But 
whenever an appeal from any judgment shall be pending, 
and the undertaking requisite to stay execution on such 



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CLARK'S CODE OF CIVIL PROCEDURE. 247 

judgment shall have been given, and the appeal perfected 
as provided in title thirteen of this chapter, the court in 
which judgment was recovered may, on special motion, after 
notice to the person owning the judgment, on such terms as 
they shall see fit, direct an entry to be made by the clerk 
on the docket of such judgment, that the same is secured on 
appeal, and thereupon it shall cease, during the pendency 
of said appeal, to be a lien on the real property of the judg- 
ment debtor, as against purchasers and mortgagees in good 
faith. 

Lien of docketed indigents* — A docketed judgment is a lien upon the 
lands of the debtor, although it does not divest the estate out of the debtor, nor 
does it make the land primarily liable for the debt, though the lien exists. And 
where the debtor dies, the land descends to the heirs subject to the lien, which 
lien, however, is subject to the right of the heirs to have the debt paid by the 
personal property, if there is enough for that purpose ; if there is not enough 
to pay the debt, then the land may be sold for assets by the administrator. 
Murchison v, Williams, 71 — 135. 

Before the adoption of the Code, the levy of a senior execution on land did 
not prevent a levy and sale under a junior execution, and a purchaser at such 
sale obtained a good title. The Code has constituted a docketed judgment a 
lien on the real property of fhe judgment debtor, and a purchaser at a sale 
under a junior docketed judgment acquires the estate subject to the lien of any 
prior docketed judgment. A judgment obtained before the adoption of the 
Code, if docketed within a reasonable time thereafter, acquired a hen upon the 
real estate of the judgment debtor. Such judgments were not prejudiced by 
the adoption of the Code. Sharpe v. William, 76 — 87. 

Where a purchaser at a sale under a decree of foreclosure, or a purchaser at 
execution sale, obtains a deed for a tract of land lying in two counties, and the 
mortgage was registered or the jud^ent docketed only in one county, such 
deed convtys no title as against creditors or purchasers for value, to that part 
of the land lying in the other county. King v. Portis, 77 — 25. 

A foreclosure sale under a mortgage of land lying in two counties, the mort- 
gage being registered in but one, passes title to the land in both as against a 
purchaser under a judgment docketed, subsequently to the foreclosure proceed- 
ings, in the county where the mortgage, was not registered. King v. Portis, 
8t — 382, overruling King v. Portis, 77 — 25. 

A judgment for costs against a defendant and in favor of the officers of the 
court, when docketed, is a lien to the same extent as a judgment in favor of 
the plaintiff. Sheppard v. Bland, 87 — 163. 

Lien^ fk'Om what time. — The judgment is a lien upon land at and from the 
time of its being docketed. Harns v. Ricks, 63 — 653; Hoppock v. Shober, 

69—153. 

The effect of tjie act suspending the Code, is to make the clerk simply the 
instrument of the judge in entering up judgments, and the provisions in regard 
to docketing judgments in the court where they are taken, are suspended 
thereby, and the i8th rule of the supreme court now regulates the same. Nor- 
wood V. Thorp, 64 — 682. 

Judgments docketed during a term of the superior court in the county in 
which they are taken are deemed to have been docketed on the first day of such 
terra. 'Ibid, 

A judgment refers back to the first day of a term at which it was rendered, 
independent of the C. C. P. Farley v. Lea, 4 D. & B., 169; Foust v. Trice, 



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248 CLARK'S CODE OF CIVIL PROCEDURE. 

S Jones, 490; Finley v. Smith, 2 Ire., 225. Contra^ Clifton y. Wynne, 
81—169. 

Lien of execution from the snpreme conrt*— An execution of the su- 
preme court is a lien on the land of^the defendant in the county to which it is 
directed, from its Uste, Rhyne v. McKee, 73 — 259. 

S^e § 436. post. 

Lien on eqnitable interest* — Where a debtor executes a deed in trust to a 
trustee to secure certain debts therein mentioned, and after the registration of 
the deed, a creditor obtains judgment, and has the same duly docketed, the 
judgment, under the provisions of this section, is a lien upon the equitable es- 
tate of the debtor. The lien, thus acquired, can not be enforced by a sale un- 
der execution. In order to sell an equitable estate, not liable to' sale under 
execution, the plaintiff in the execution must resort to his action (as formerly, 
to bill in equity,) to ascertain the rights of all parties interested, and to enforce 
his lien. McKeithan v. Walker, 66 — 95. 

A docketed judgment is a lien on the debtor's whole interest, legal or equit- 
able, but the equitable interest can not be levied upon and sold except as au- 
thorized by act of 1812. Mauney v. Ihrie, 76 — 299. 

Priority of lien. — The United States government has an undoubted right to 
priority of payment in case of a general conveyance of his property by an insol- 
vent, but that right is subject to a prior lien, and if a hen be acqni red by a 
docketed judgment, it will not be defeated by a subsequent assignment, unless 
the insolvent be thrown into bankruptcy by proceedings commenced within 
four months thereafter. Hoppock v. Shober, 69 — 153. 

If a sale of land is made under a junior docketed judgment, the purchaser 
buys, in effect, only an equity of redemption ; that is, the title to the land upon 
paying off prior liens. Halyburton v. Greenlee, 72 — 316 ; Isler r. Colgrove, 
75 — 334 ^ Cannon v. Parker, 81 — 320. 

A sale under both a senior and a junior docketed judgment, vests the title in 
the purchaser, and transfers the liens in the same order of priority, to the pro- 
ceeds of th4 sale. Cannon r. Parker, 81 — 320. 

The lien of a prior docketed judgment is not disturbed by a sale under a 
junior judgment. Worsl^y v. Bryan, 86 — 343. 

A sheriff is liable upon his official bond for a failure to apply proceeds of 
sale of a debtor's land in payment of an execution, in his hands at the time of 
sale, issued upon a judgment bearing the prior lien. The lien upon land ac- 
quired by docketing a judgment can not be displaced by one subsequently ac- 
quired. (The rights of the party under the judgment and execution of the 
supreme court were lost by not issuing aHas executions.) Titman t. Rhyne, 
89 — 64. 

Lien^ llOW lost. — Quere, — Whether a lien created by a levy prior to the 
docketing of a judgment, is continued by virtue of such docketing without fol- 
lowing it with a vrnditioni exponas ; or whether the issuing of an execution on 
such docketed judgment waives the lien created by the levy before docketing? 
Baldwin v. York, 71 — 463. 

y The lien on the land of the defendant acquired by a docketed judgment 
shall not be lost in favor of a judgment subsequently docketed, unless the 
plaintiff in the latter take out execution, and give the plaintiff in the former 
twenty days* notice before the day of sale by the sheriff, and the plaintiff so no- 
tified fail to take out execution and put it into the sheriff 's hands before the day 
of sale, as is prescribed in the 19th rule of practice, adopted by the supreme 
court at June term, 1869, (63d N. C, 669). Perry v. Morris, 65 — 221; 
Dougherty v. Logan, 70^558. 

The lien acquired by a judgment obtained before the C. C. P., upon which 
execution issued and was levied upon land and kept alive by successive alias 
executions, issued from term to term, was not waived or lost by docketing a 
transcript of such judgment in another county. Isler v. Colgrove, 75—334. 

The lien under this section is lost by the lapse of ten years after docketing, 
although execution is regularly issued. Pasour v. Rhyne, 82 — 149. 



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CLARK'S CODE OF CIVIL PROCEDURE. 249 

A sale of land under execution issued more than ten years after the dockeV 
ing of the judgment, is invalid. The purchaser at such sale is affected with 
notice of the expiration of the judgment lien, and gets no title. Lyon v. Russ, 
84 — 588: Pasourv. Rhyne, 82 — 149. 

A, B and C had all taken judgments against D. A's judgment was never 
docketed. B's was docketed in June, 1869 ; C*s was docketed in January, 
1878. Executions issued on all these judgments bearing teste Fall, 1879 • -^-f^^'i 

1. That A, having never docketed his judgment, had no lien to compete for 
the fund against the other two; 

2. That B's judgment had ceased to be a lien by the lapse of ten years from 
the day it was docketed; 

3. That C's judgment should be first paid out of the proceeds of the execu- 
tion sale. Whitehead v. Latham, 83 — 232. 

The lien of a docketed judgment is lost by the lapse of ten years. Fox v. 
Kline, 85 — 173; McDonald v. Dixon, 85 — 248. Except as to the lien upon the 
interest in reversion of the homestead. Cotten v. McClenahan, 85 — 254. 

See § 152, ante^ and cases there cited. 

When not a lien* — A docketed judgment is no lien on real property which 
has been paid for by the debtor, but title taken in the name of a third person. 
Dixon v. Dixon, 81 — 323; Wall v. Fairly, 77 — 105. 

A docketed judgment against an administrator in his executive capacity, 
when administration was granted prior to July i, 1869, created no lien upon 
his land. Williams v. Green, 80 — 76. 

Asslflrnment of jndgrmeut. — An assignment of a judgment is not necessa- 
rily to be entered on the docket. Winberry v. Koonce, 83 — 351. 

Requirement as to teste of execution .—The act of assembly, i87o-'7i, 
chapter 42, by which executions issued on judgments in civil actions are required 
to be tested as of the term next before the day on which they are issued, is 
merely directory, and its omission does not vitiate the process. Bryan v. Hubbs, 
69—423. 

Jndsrments by default. — Quere. How are judgments by default, now al- 
lowed by law, and the amounts thereof, ascertained ? Is it in the manner pre- 
scribed in § 385, ante^ or is it by the old mode of a jury and a writ of en- 
quiry? Sutton v. McMillan, 72 — 102. 

^' §§385. 386, ante^ and cases cited. 

Purchaser under an execution unafiTected by irreirularity in the Jndff- 
ment* — In an action of ejectment the plaintiff who is a stranger to the juog- 
ment need only show the execution under which the land was sold in order to 
establish his title against the defendant in the execution ; nor is his title affected 
by any irregularity in the judgment. Lee v. Bishop, 89 — . 

Judgment^ how kept alire* — A judgment can be kept alive by the issuance 
of executions within each successive period of three years from the issue of the 
previous execution. Williams v. Mullis, 87 — 159. 

Remedy upon Judgrments nisi. — The proper mode of enforcing judgments 
nisi is by action, or special proceedings commenced by summons. Jones v. 
Gupton, 65 — ^48. 

Note. — This is now otherwise, and the remedy is by motion upon notice, 
§ 446, post. 

Judgments of one superior court docketed in another.— Where a judg- 
ment was rendered in one county, and docketed in another, proceedings supple- 
mentary to execution should be instituted in the county in which the judgment 
was rendered, as the action is pending in that county until the judgment is satis- 
fied. Hutchinson v. Symons, 67 — 156. 

The fact that a judgement docketed in one county is afterwards docketed in 
another, does not deprive it of the lien it had on the defendant's land in the 
first county. Perry v. Morris, 65 — 221. 

32 

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250 

The transcript of a judgment sent from one county to another to be docketed 
which sets out the date of its rendition, the names of the parties to the suit, the 
amount of the debt, and the costs of action, is sufficient to give notice of the lien 
on the defendant's land. Wilson v. Patton, 87 — 318. 

Justices' Jadirmeutfl docketed In the superior court. —A judgment, given 

by a justice of the peace in one county, can not be docketed in another without 
having been first docketed in the county where it was rendered. McAden v. 
Banister, 63 — 478. 

The provision for docketing a justice's judgment in the office of the clerk of 
the superior court of ihe county, so as to make it a judgment of the superior 
court,.from the lime of its being docketed, is not repealed by the act of i868-*9, 
cnapler 76, entitled *'an act suspending the Code of Civil Procedure in cer- 
tain cases." Bates v. Bank, 65 — 81. 

If a justice's judgment be docketed in the superior court, it will be a lien 
upon the land of the defendant from the time it was docketed, and will have a 
priority over a judgment obtained in court by another person against the same 
defendant at a subsequent time, and though an execution be issued on the lat- 
ter, and the sheriff levies it on the land and advertises it for sale, yet, if before 
the sale execution is issued on a part of the justice's docketed judgments, and is 
placed in the hands of the sheriff, the proceeds of the sale of the land must be 
first applied to the payment of all the justice's judgment. Perry v. Morris, 65— 
221. 
r. I' A justice's judgment is docketed in the superior court for the purpose of lien 

L 3 and execution, and that court has no power to set it aside, unless the cause is 

"^ ' carried up by appeal or recordari. A judgment can only be vacated by the 

^ -^ court which rendered it. Morton v. Rippy, 84 — 611. 

' The docketing of a dormant justice's judgment in the superior court does not 

'^ have the effect of reviving it, but merely brings it within the operation of the 

\ rules applicable to original judgments in that court. If not removed, a new 

L'> action would have been necessary to revive it, therefore quere as to whether 

. ^ the transfer to the superior court should not be made before the dormancy of 

the judgment ? Williams v. Williams, 85 — 383. 

A transcript of a justice's judgment, sent up to be docketed in the superior 
court, need not contain more than the essential particulars constituting the 
judgment. And where the justice authenticates it by his certificate, it will be 
regarded as having been regularly taken, in the absence of proof to the con- 
trary, though the judgment itself is not signed by the justice. No levy is nec- 
essary on real estate. Docketing the judgment creates the lien. Surratt v. 
Crawford, 87 — 372. 

A transcript of a justice's judgment containing the names of the plaintiff and 
defendant, the amount of the judgment, and the costs of action, is sufficient. 
The law does not require the entire record to be sent up to be docketed. Lcc 
V. Bishop, 89 — . 

Il^anctions a^alnt Jodgments. — When the affidavit alleges that one of the 
defendants, who is the plaintiff's debtor, has conspired with the other, to give 
him his bond without substantial consideration, and allow judgment and exe- 
cution thereon, in order to defraud the plaintiff, the injunction will be continued 
to the hearing, although the defendants may deny the fraud in their answer. 
Heilig v. Stokes, 63—612. 

That the party failed to sustain his defence in an action, through the unex- 
pected absence of the nominal plaintiff, whom he had subpoenaed as a witness, 
is no ground for an injunction against the judgment in such action. Wilder v. 
Lee, 64 — 50. 

It is no ground for injunction against a judgment, obtained by the assignee 
of a bankrupt bank, that the defendant, " being unable to obtain the bills of 
the bank," had tendered in discharge of the judgment one-half its amount in 
currency, which was alleged to be the value of such bills. Smith v. Dewey. 
64—463. 

^^ § 338 (i), anie^ and cases cited. 



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CLARK'S CODE OF CIVIL PROCEDURE. 25 1 

See § 274, ante^ for remedies where judgment has been taken by excusable 
neglect, mistake or surprise. 

See^ also, Rules of supreme court in this volume, as revised, amended and re- 
adopted January i, 1884. 

Hec. 4^i6. Judgment in supreme court m,ay be docketed in 
superior court ; lien of Judgment ; when transcript may 
be obtained. 1881, c. 75, ss. 1, 4. 

It shall be the duty of the clerk of the sapreme court, od 
application of the party obtaining judgment in said court, 
directing in whole or in part the payment of money, or 
aflFecting the title to real estate, or on the like application 
of the attorney of record of said party, to certify under his 
hand and the seal of said court a transcript of said judg- 
ment, setting forth the title of said court, the names of the 
parties thereto, the relief granted, that said judgment was 
so rendered by said court, the amount and date of said judg- 
ment, what part thereof bears interest and from what time; 
and said clerk shall send such certificate and transcript to 
the clerks of the superior court of such counties as he may 
be directed; and the clerk of the superior court receiving 
the said certificate and transcript shall docket the same in 
like manner as judgment rolls of the superior court may 
be docketed. And when so docketed, the lien of said judg- 
ment shall be the same in all respects, be subject to the 
same restrictions and qualifications, and the time shall be 
reckoned as is provided and prescribed in the preceding 
sections for judgments of the superior court, so far as the 
same may be applicable. The party desiring the certificate 
and transcript provided for in this section, may obtain the 
same at any time after such judgment has been rendered, 
unless the supreme court shall otherwise direct. 

See Rhyne v. McKee, cited under § 433, an/e. 



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252 



CLARK S CODE OF CIVIL PROCEDURE. 



TITLE XL 

OF THE EXECUTION OF THE JUDGMENT IN 
CIVIL ACTIONS. 

Chap. I. The Execution. 

II. Defendant's Claim for Impbovements beporb 
Execution. 

III. Proceedings Supplementaby to Execution. 

IV. Exemptions fbom Executions. 



CHAPTER ONE. 
THE EXECUTION. 



Section. 

437. Execution within three 

years of course. 

438. After judgment, party may 

pay the same, although 
no execution has been is- 
sued. 

439. Clerk to pay the money to 

the party entitled. 

440. After three years, to be is- 

sued only by leave of the 
court; leave, how ob- 
tained. 

441. Judgments, how enforced, 

442. The different kmds of exe- 

cution. 

443. To what counties execution 

may be issued; execution 
against a married woman. 

444. Executions to issue from 

the court in which the 
judgment was rendered, 
and return made to the 
same court. 

445. Returns on executions to 

be noted on judgment 
docket, and in certain 
cases clerk to send copies. 

446. Notice of judgment nm', 

how given. 



Section. 

447. Execution against the per- 
son, in what cases. 

Form of execution. 

Executions tested as of pre- 
ceding term, and return- 
able to the next succeed- 
ing term. 

What may be sold under 
execution. 

On sale of equity of re- 
demption, what sheriff to 
set forth in deed. 

Sale of trust estate; pur- 
chaser holds the same dis- 
charged of trust. 

Execution not to be levied 



448. 
449. 



450. 
451. 



452. 



453. 



on growmg crops. 

Sale days under execution, 
or by order. 
455. Sale may be postponed from 
day to day, but not more 
than three days. 

Sale, how advertised. 

Notice of sale to be served 
on defendant, and in cer- 
tain cases on the governor. 

All private acts allowing 
land to be sold repealed. 
459. Time of commencing sale. 



454. 



456. 
457. 



458. 



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CLARK'S CODE OF CIVIL PROCEDURE. 



253 



Sbotion. 

460. Sale of personal property 

under execution, when and 
where advertised.. 

461. Penalty for selling contrary 

to law. 

462. No sale for want of bidders; 

what ofQlcer shall state; 
penalty. 

463. Forthcoming bond may be 

taken for personal prop- 
erty. 

464 . Surety to be furnished with 

list of the property. 

465. Officer, how to proceed on 

bond if condition broken. 

466. Officer allowed pay for 

keeping horses, &c. 

467. Officer to make out his ac- 

count and file with execu- 
tion. 



Section. 

468. Purchaser at execution sale 

may recover of defendant 
in the execution when the 
title to the property sold 
is defective. 

469. Defendant dying in execu- 

tion, debt not discharged; 
new execution against 
property. 

470. Clerks to issue execution 

within six weeks; penalty 
one hundred dollars for 
failure. 

471. Officer to prepare deeds for 

property sold. 

472. Costs on executifons satis- 

fied in part or in whole to 
be paid to clerk; penalty 
forty dollars for failure. 



Sec. 437* Executions within three years of course. C. C. 

The party in whose favor judgment has been heretofore 
or shall hereafter bo given, and in case of his death, his per- 
sonal representatives duly appointed, may at any time 
within three years after the entry of judgment, proceed to 
enforce the same by execution, as provided in this chapter. 

Against a county* — An execution does not issue upon a judgment obtained 
against a county. The remedy is by mandamus. Gooch v. Gregory, 65 — 142. 

On Judgment in partition. — On a judgment in partition, charging the 
more valuable lots with sums to make equality of partition, execution will issue 
except as to minors, against whose property execution is suspended until their 
becoming of age. Turpin v. Kelly. 85 — 399. 

On dormant J adgment. — Execution can issue on a dormant judgment only 
after notice, motion and proof, as provided in this chapter. Williams v. Wil* 
liams, 85 — 383. 

LeTJ upon exempted property. — It is not error to refuse to set aside an 
execution, upon the allegation that exempted land has been levied on and sold 
thereunder. Hasty v. Simpson, 84 — 590. 

Teste of execation. — The act of assembly, i870-'7i, chap. 42, (| 449, 
posi^) by which executions issued on judgments in civil actions, are required to 
be tested as of the term next before the day on which they are issued, is merely 
directory, and its omission does not vitiate the process. Bryan v. Hubbs, 
69—423. 

Se? § 449» /^J ^• 



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254 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 438. After judgment party may pay the same, al^ 
though no execution has been issued. R. C, c. 31, s. 127* 
1823, c. 1212, s. 1. 

The party against whom any judgment for the payment 
of money may be rendered, by any court of record, may 
pay the whole, or any part thereof, to the clerk of the court 
in which the same may have been rendered, at any time 
thereafter, although no execution may have issued on such 
judgment ; and such payment of money shall be good and 
available to the party making the same, and the clerk shall 
enter the payment on the judgment docket of the court, 
and immediately forward a certificate thereof to the clerk 
of the superior court of each county to whom a transcript 
of said judgment has been sent, and the clerk of such supe- 
rior court shall enter the same on the judgment docket of 
such court, and file the original with the judgment roll in 
the action. 

Acts from which such an agency in the clerk, beyond what the law, under 
this section, gives him, may be implied, must be such as under the circum- 
stances are reasonably calculated to induce the debtor to believe that the clerk 
was the creditor's agent for the purpose. Purvis v. Jackson, 69 — 474. 

A debtor may pay money (on a judgment) to the clerk of the court before an 
execution issues, or after it has been returned, but not while it is in the hands of 
the sheriff. Bynum v. Barefoot, 75 — 576. 

Sec. 439. Clerk to pay the mtmey to the party entitled. JR. 
C, c. 31, s. 128. 1823, c. 1212, s. 2. 

The clerk, to whom money shall be paid as aforesaid, 
shall pay the same to the party entitled to receive it, under 
the same rules and penalties as if the money had been paid 
into his o£Sce by virtue of an execution. 

Sec. 440. After three years, to be issued only by leave of 
court; leave, how obtained. C. C. JP., s. 256. 

After the lapse of three years from the entry of judgment, 
an execution can be issued only by leave of the court, upon 
motion, with personal notice to the adverse party, unless 
he be absent or non-resident, or can not be found to make 
such service, in which case such service may be made by 
publication, or in snch other manner as the court shall di- 
rect. Such leave shall not be given unless it be established 



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CLARK*S CODE OF CIVIL PROCEDURE. 255 

by the oath of the party, or by other satisfactory proof, that 
the judgment, or some part thereof, remains unsatisfied and 
due. But the leave shall not be necessary when execution 
has been issued on the judgment within the three years 
next preceding the suing for execution, and return thereof 
unsatisfied in whole or in part. 

Jnrisdietion of the application. — The clerk of the superior court is the 
proper person to hear an application to issue an execution upon a judgment of 
more than three years' standing, and not the judge. The execution in such case 
must be made returnable to the next term. McKeithan v. McNeill, 74 — 663. 

AfHdaTit* — This affidavit can be made by a party in interest, although the 
judgment debtor is dead. Latham v. Dixon, 82 — 55. 

An affidavit that the judgment is unsatisfied is not necessary. It is sufficient 
if it appears by any other satisfactory proof. Surratt v. Crawford, 87 — 372. 

Notice of applicatiou* — Notice of a motion for leave to issue execution 
against a corporation served upon its president, or managing board, or others 
(named in § 217, anU) is sufficient. The *' personal notice" is in contra-distinc- 
tion to that by publication. Rush v. Steamboat Co., 84 — 703. 

That personal nonce was given to the defendant is determined by the granting 
the leave asked for, when there is no proof made that notice was not given. 
Surratt v. Crawford, 87 — 372. 

Death of Jadgment debtor*— When a party dies after judgment, the action 
abates, just as it would before judgment. In such case, notice of a motion to 
revive must be served on his personal representative. Aycock v. Harrison, 
71 — 432. This case was in regard to an action in which judgment was had in 
1 861. Under § 188 of the Code an action is only abated by order of the court. 
See Moore v. N. C. R. R. Co., 74 — 528, and other cases cited under § 188, 
ante. 

In a motion for leave to issue execution upon a judgment ubtained in the life- 
time of the defendant's testator, and which is a lien upon his lands, his heirs 
are necessary parlies. Isler v. Murphy, 71 — 436. 

This section does not apply where the judgment debtor is three years deceased, 
such cases falling under C. C. P., § 319. Lee v. Eure, 82 — 428. 

Upon Justices' J oddments. — Leave to issue 'execution on a justice's judg- VV' l( ^ ^ 
mem docketed in the superior court can be granted after the lapse of seven "" .; ^ ^ 
years from such docketing, but before the lapse of ten years. Broyles v. Young, ^» , , 
81 — 315; Daniel V. Laughlin, 87 — 433. /' ' ' ' , 

Lcaye may be grranted^ when* — Leave to issue execution may be granted 
when it is established that the judgment has not been entirely satisfied, and 
that it is not barred by the statute of limitations. Johnston v. Jones, 87 — 393. 

After lapse of ten years* — Execution may be issued after the lapse of ten 
years from the docketing of the judgment where the judgment has been kept 
alive by issuing executions within each successive period of three years, and a 
levy and sale of personal property under it are valid. Williams v. MuUis, 
87—159- 

Banlcmptey not a bar to the application^ if hen. — A discharge in bank- 
ruptcy, obtained before judgment is taken ki a cause, and not then pleaded in 
bar, can not be pleaded in bar of a motion to re-issue execution on such judg- 
ment. Bell v. Cunningham, 81 — 83 ; Sanderson v. Daily, 83 — 67. 

What is a bar to the application.— A discharge in bankruptcy can be 
pleaded in bar to this motion, without regard to the length of time that has 
elapsed. Dawson v. Hartsfield, 79 — 334 ; and though the judgment was 6b- 



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256 , CLARK'S CODE OF CIVIL PROCEDURE. 

tained after the adjudication, if upon a debt in existence when adjudication 
granted. Ibid ; and Withers v. Stinson, 79 — 341 ; Blum v. Ellis, 73 — 293. 

The statute of limitations is a complete bar to amotion for leave to issue exe> 
cution when such motion is made more than ten years after the rendition of the 
judgment. McDonald v. Dickson, 85 — 248; Williams v. Mullis, 87 — 159. 

If motion refused, it can not be renewed.— Where this motion is made 
and refused without any appeal being taken, it can not be renewed. Sander- 
son V. Daily, 83 — 67. 

This section applies, when. — This section applies to transcripts of justices' 
judgments docketed in the superior court. Broyles v. Young, 81 — 315. 

Execution can only issue after the lapse of three years since the issuance of 
the last execution, by complying with the requirements of this section. Wil- 
liams V. Williams, 85—383. 

Sec, 44:1. Jud^ntentSj haw enforced. C. C. JP., s. 2S7. 

Where a judgment requires the payment of money, or 
the delivery of real or personal property, the same may be 
enforced in those respects by execution, as provided in this 
title. Where it requires the performance of any other act, 
a certified copy of the judgment may be served upon the 
party against whom it is given, or upon the person or order 
who is required thereby or by law to obey the same, and 
his obedience thereto enforced. If he refuse, he may be 
punished by the court as for contempt. 

Real estate of corporation. — Real estate of a corporation, necessary for 
public uses, can not be sold under execution separate from its franchise. Gooch 
V. McGee, 83 — 59. 

Receipt of money by sheriff. — When a sheriff receives money in payment 
of an execution, the law makes the application, and it is a satisfaction of the 
judgment. Motz v. Stowe, 83 — 434. 

Agrainst an administrator.— After a judgment fixing an executor with assets 
and a return of nu//a dona on an execution issued thereon, the proper mode to 
subject such executor personally is by motion on notice and not by a civil 
action. McDowell v. Asbury, 66 — 444. 

Power of saprenie court. — The supreme court has no power to compel 
a defendant, by attachment, to apply money he is said to possess to the pay- 
ment of a judgnient for costs recovered against him by the plaintiff in the court. 
The provisions in regard to supplemental proceedings, (§ 488 to § 500, ffcsi,) 
are only applicable to the superior courts. Phillips v. Trezevant. 70 — 176. 

Sec. 442. The different kinds of execution. C. C. JP., «. 258. 
There shall be three kinds of execution : one against the 
property of the judgment debtor, another against his per- 
son, and the third for the delivery of the possession of real 
or personal property, or such delivery with damages for 
withholding the same. They shall be deemed the process 



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CLARK'S CODE OF CIVIL PROCEDURE. 257 

of the court, and shall be subscribed by the clerk, and, when 
to run out of his county, must be sealed with the seal of his 
court. 

If no order of arrest before judgment.— Where there is no order of arrest 
before judgment, the defendant can not be arrested under this section after judg- 
ment. Houston v. Walsh, 79 — 35. 

See Bryan v. Hubbs, 69 — 422; Finley v. Smith, 4 Dev., 95. 

Sec* 443, To what counties execution may be issued; exe^ 
ctttion against a married woman. C. C. JP; s. 259. 

When the execution is against the property of the judg- 
ment debtor, it may be issued to the sheriff of any 
county where the judgment is docketed. When it requires 
the delivery of real or personal property, it must be issued 
to the sheriff of the county where the property, or some 
part thereof, is situated. Executions may be issued at the 
same time to different counties. 

Keal property adjudged to be sold must be sold in the 
county where it lies, by the sheriff of the county, or by a 
referee appointed by the court for that purpose ; and there- 
upon the sheriff or referee must execute a conveyance to 
the purchaser, which conveyance shall be effectual to passC 
therighta^aiid interests of^the parties adjudged to be sold.' 

An execution may issue against a married woman, and 

it shall direct the levy and collection of the amount of the 

judgment against her from her separate property, and not 

otherwise. 

Sale onder an execution Issned upon a Judgrment not docketed in the 
Connty* — Title derived by purchase at a sheriff s sale under a judgment not 
docketed in the county where the land lies, avails nothing against a purchaser 
for value from the defendant in the execution. Rollins v. Henry, 78 — 342. 

Seal necessary upon execation issued to another oonnty.— An execu- 
tion issued to another county, and all proceedings under it, are void unless it 
bears the seal of the superior court of tne county where the judgment was taken. 
Taylor v. Taylor. 83 — 116. 

Foreclosnre sales. — This section does not apply to foreclosure sales. Kid- 
der V. Mcllhenny, 81 — 123 ; Mebane v. Mebane, 80 — 34. 

Sec. 444. Executions to issue from the court in which the 
Judgment was rendered, and return made to the same 
court. 1871''2,c.74,s.l. 1881, c. 75. 

The executions provided in this chapter, and other pro* 

cess for the enforcement of such judgments, shall issue only 

33 






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258 CLARK'S CODE OF CIVIL PROCEDURE. 

from tbe court in which the judgment for the enforcement 
of such execution, other final process, or any of them may 
issue, was rendered ; and such executions or other final 
process against the property of the defendant or defendants, 
or any one or more of them, may be issued under the seal 
of the court to any county in which such last mentioned 
judgment may be docketed; and such executions or other 
final process may issue to two or more counties at the same 
time as now provided by law, and executions against the 
person or persons of the defendant or defendants, or any of 
them, may issue to any one, or more counties; and there- 
turns of all such executions or other final process shall be 
made to the court of the county from which the same issued. 

lint J of sheriff to make a return* — A sheriff is bound, to return every 
process, which comes into his hands, not void, with a sla»en>ent of his action 
under it ; and, if he has not completely obeyed it, with a lawful reason for his 
omission. Bryan v. Hubbs, 69 — 423. 

See § 598, post^ and cases cited. 

Hec. 445* JRefurn^ on executions to be nofed fm Judgment 
docket ^and in certain canes clerk to send copies, 1871'^2. 
c. 74, 8. 2. 1881, c. 75. 

When any such execution shall be returned as herein 
provided, the return of the sheriflF or other oflScer shall be 
noted by the clerk on the judgment docket; and when tbe 
same shall be returned as satisfied, or partially satisfied, it 
shall be the duty of the clerk of the court to which the same 
is returned to send a copy of such last mentioned return, 
under his hand, to the clerk of the superior court of each 
county in which such judgment is docketed, whose duty it 
shall be to note such copy in his judgment docket, opposite 
said judgment, and to file said copy with the transcript of 
the docket of said judgment in his oflSce. Any clerk fail- 
ing to send a copy of the payments on said execution or 
judgment to the clerks of the superior court of the counties 
wherein a transcript of the judgment has been docketed, 
and any clerk failing to note said payment on the judgment 
docket of his court, shall, on motion, be fined one hundred 
dollars nisi for said failure, and said conditional judgment 



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CLARK'S CODE OF CIVIL PROCEDURE. 259 

shall be made absolute upon notice to show cause at the 
succeeding term of the superior court of his county. 

Sec. 440. Notice of judgment nisi, how given. 1871^^2, c. 
74, 8. 4. 

In all cases where any sheriff, or other oflScer, shall be 
amerced for failure to make due return of any execution, or 
other process placed in his hands, or for any default whatso- 
ever in hiaofBce, and judgment nisi or otherwise, for the pen- 
alty or forfeiture in such cases made and provided shall be 
entered, it shall be suflScient to give such sheriff notice, 
according to law, under the hand of the clerk and seal of 
the court, where such judgment may be entered, of a motion 
for a judgment absolute, or for execution, as the case may 
be, and no other notice, summons or suit shall be necessary 
to enforce the same ; and such proceedings shall be deemed 
and held in aid of a suit or other proceedings already insti- 
tuted in court. 

Note, — This section reverses rule laid down in Thompson v. Berry. 64 — 79. 

Judgment absolate set aside. ~A judgment absolute upon a judgment nisi 
for the amercement of a sheriff can be set aside, like any other judgment, upon 
excusable neglect shown. Francks v. Sutton. 86 — 78. 

See § 598, post^ and cases cited. 

Sec. 447* Execution against the person, in what cases. C. 
C. JP., s. 260. 

If the action be one in which the defendant might have 
been arrested, an execution against the person of the judg- 
ment debtor may be issued to any county within the state, 
after the return of an execution against his property unsat- 
isfied in whole or in part. But no execution shall issue 
against the person of a judgment debtor, unless an order 
of arrest has been served, as provided in title nine, sub- 
chapter one of this chapter, or unless the complaint con- 
tains a statement of facts showing one or more of the causes 
of arrest required by section two hundred and ninety-one. 

Prereqalsites* — ^Where a docketed judgment is relied on as authority for 
an arrest of the person by issue of execution thereunder, it is necessary that the 
affidavit and order of arrest of the magistrate should be docketed with the judg- 
ment. McAden v. Banister. 63 — 478. 

The clerk can not hear parol evidence of an order of arrest having been is- 
sued by a justice of the peace of another county. I^d, 



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26o CLARK'S CODE OF CIVIL PROCEDURE. 

Can not issue^ when. — When a defendant has been arrested under a pro- 
visional order, upon a charge of concealment of his property, and denies such 
fraud, and afterwards, by consent, judgment is entered for the debt only, and 
the issue of fraud is not tried, execution can not issue against his person. Claf- 
lin V. Underwood, 75 — 485. 

Can not issue unless an crder of arrest was, or could have, issued before 
judgment. Houston v. Walsh, 79 — 35. 

Seetion construed* — This section elaborately discussed and coflstmed. 
Peebles v. Foote, 83 — 102. 

See § § 290, 291, 292, 293, ante, and cases cited. 

Sec. 448. Form of execution. C. C. P., 8. 261. 1868-^9 , e. 
148 y s. 1. 1870-' 1, c. 42, 8, 7. 

The execution must be directed to the sheriff, or coroner 
when the sheriff is a party or interested, subscribed by the 
clerk of the court, and must intelligibly refer to the judg- 
ment, stating the county where the judgment roll of trans- 
cript is filed, the names of the parties, the amount of the 
judgment, if it be for money, and the amount actually due 
thereon, and the time of docketing in the county to which 
the execution is issued, and shall require the oflSicer sub- 
stantially as follows : 

Irre^nlarities in the Jad^mevt do not affect the title of porehaserat 

execution 8ale« — Irregularities alleged to have occurred before the issuing of 
an execution, or the dormancy of a judgment not known to the purchaser, can 
not invalidate his title. Barnes v. Hyatt, 87 — 315; Grier v. Rhyne, 67 — 338. 

Teste of execution. — The act of assembly, § 449, post, by which execu- 
tions issued on judgments in civil actions are required to be tested as of the 
term next before the day on which they are issued, is merely directory, and its 
omission does not vitiate the process. Bryan v. Hubbs, 69—423. 

Effect of levy on land* — A levy on land, by virtue of an execution, may (the 
court intimates) be an appropriation of the land requiring its sale before resort- 
ing to other lands to which some equitable right has attached. If this is not so, 
it is a mere nullity, for the lien is conferred by the docketing of the judgment. 
Barnes v. Hiatt, 87 — 315. 

Against property — no lien on personal property until lei^y. 

(1) If it be against the property of the judgment debtor, 
it shall require the oflScer to satisfy the judgment out of th^ 
personal property of such debtor; and if suflScient personal 
property can not be found, out of the real property b^^long- 
ing to him on the day when the judgment was docketed in 
the county, or at any time thereafter; but no execution 
against the property of the judgment debtor shall be a lien 
on the personal property of such debtor, as against any 



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CLARK'S CODE OF CIVIL PROCEDURE. 261 

bona fide purchaser from him for value, or as against any 
other execution, except from the levy thereof. 

Personal property allotted to a widow as her year's support is subject to seiz- 
ure and sale under an execution issued upon a judgment recovered against her 
deceased husband in his life time, tested before his death but issued thereafter. 
Grant v. Hughes, 83 — 216. 

Note. — This was changed by chap. 42, acts 1880. 

Against property in hands of personal representative, 

(2) If it be against real or personal property in the hands 
of personal representatives, heirs, devisees, legatees, tenants 
of real property or trustees, it shall require the oflScer to 
satisfy the judgment out of such property. 

Under an execution tested prior to the death of a testator (or intestate) though 
issued after the death, the sheriff may proceed to sell the property. Aycock v. 
Harrison, 65 — 8 ; Grant v. Newsom, 81 — 36. 

Against the person, 

(8) If it be against the person of the judgment debtor, it 
shall require the o£Scer to arrest such debtor, and commit 
him to the jail of the county until he shall pay the judg- 
ment or be discharged according to law. 

See § 447, anUy and cases cited. 

For delivery of specific property, 

(4) If it be for the delivery of the possession of real or 
personal property, it shall require the oflScer to deliver the 
possession of the same, particularly describing it, to the 
party entitled thereto, and may at the same time require 
the o£Scer to satisfy any costs, damages, rents or profits re- 
covered by the same judgment, out of the personal property 
of the party against whom it was rendered, and the value 
of the property for which the judgment was recovered, to 
be specified therein, if a delivery thereof can not be had ; 
and if sufiScient personal property can not be found, then out 
of the real property belonging to him on the day when the 
judgment was docketed, or at any time thereafter, and shall 
in that respect be deemed an execution against property. 

BecOYery of real estate* — It is the modern practice, under a writ of po»- 
session, for the plaintiff to point out to the sheriff, at his peril, the land recov- 
ered, and the sheriff puts him in accordingly. Johnson v. Nevill, 65—677. 



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262 CLARK'S CODE OF CIVIL PROCEDURE. 



Damages are recoverable up to the time of trial in an action of ejectment. 
Whisenhunt v. Jones, 78 — 361. 

If the jury find the plaintiff is entitled to the land, but do not find any wrong- 
ful act done to it by the defendant, the plaintiff can not recover damages or 
costs. Clarke v. Wagoner, 78 — 367. 

Sec. 449. Executions tested as of preceding t^rtn, and re- 
turnahle to the next succeeding term. 1870^^1, c 42, s. 7 ; 
lS73''4y c. 7. 

All executious issued under this chapter shall be tested 
as of the term next before the day on which they were is- 
sued, and shall be returnable to the term of the court next 
after that from which they bear teste, and no execution 
against property shall issue until the end of the term during 
which the judgment was rendered. 

Directory merelj* — The act of assembly, (this section) by which execu- 
tions issued on judgments in civil actions are required to be tested as of the 
term next before the day on which they are issued, is merely directory, and its 
omission does not vitiate the process. Bryan v. Hubbs, 69—423. 

Return can be made on any day of the term*— The sheriff is allowed all 
the days of the term to return an execution, unless he be ruled, upon motion 
and cause shown, to return it on some intermediate day. Ledbetter v. Arledge, 
8 Jones, 475 ; Person v. Newsom, 87 — 142. 

Sec. 450. What may be solfl under execution. M. C, e. 
45, ss. 1, 3, 4, 5. 5 Geo. II, c. 7, s. 4. 1777, e. 115, s. 
29. 1812, c. 830, ss. 1,2. 1822, c. 1172. 

The property, estate and effects of the judgment debtor, 
not exempted from sale under the constitution and laws of 
this state, may be levied on and sold under execution as 
hereinafter prescribed : 

For '* Exemptions," see § 501, /<?j/, and cases cited. 

For decisions under this section prior to i868, see Batt. Digest, vol, i. pp. 
533 — 568, and vol. 3, pp. 140—150. 

(1) The goods, chattels, houses, lands, tenements and 
other hereditaments, and real estate belonging to him. 

Priorities* — Where a sheriff levies on property, but before the sale a senior 
execution comes into his hands, he should apply the proeeeds of the sale to the 
senior execution. Allemong v. Allison, I Kawks, 325; Green v. Johnston, 2 
Hawks, 309. 

Where the conduct of the parties is dona fide a fieri facias of a senior teste is 
entitled to a priority, and those of equal teste to an equality, in dividing the 
proceeds of sales made by the sheriff, without reference to the time of their de- 
livery to the sheriff, if delivered to him before the return day and before the 
sale. Palmer v. Clarke, 2 Dev., 354. 

When several executions, issuing from different competent courts, are in the 
hands of different officers, if the officer holding the junior execution seizes prop- 



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CLARK'S CODE OF CIVIL PROCEDURE. 263 

erty under it, the property so seized is not subject to the execution of a senior 
execution in the hands of another officer. Jones v. Judkins, 4 D. & B., 454. 

Where executions, issued from different courts, are placed in the hands of 
different officers, and the same property is levied upon and sold by each, the 
first sale passes the title. Woodfey v. Gilliam, 67 — 237. 

Where land is sold under several executions, some issuing to enforce personal 
debts and others to enforce a lien for equality of partition, the latter have pri- 
ority in the distribution of the proceeds. Thompson v. Peebles, 85 — 418. 

Money raised by a sale of land under execution must be applied to the exe- 
cutions in the hands of the sheriff at time of sale in preference to the claim of 
a prior docketed judgment creditor whose execution was not in hand at that 
time. But the lien of such prior judgment on the land is not affected thereby. 
Worsley v. Bryant, 86 — 343. 

Note. — As to real estate, the lien now attaches from the docketing of the 
judgment, and priorities are settled by the date of such docketing. See § 435, 
ante, and cases cited. 

Sheriff's right of application. — A sheriff has a right, at his own peri], to 
apply money raised by final process to any writ in his hands. Yarborough v. 
Bank, 2 Dev., 23. 

A sheriff is liable on his official bond for a failure to apply proceeds of a sale 
of debtor's land in payment of an execution, in his hands at the time of sale, 
issued upon a judgment having a prior lien. Titman v. Rhyne, 89 — 64. 

Exeention and sale set aside^ when. — The court can not set aside an exe- 
cution for abuses of the sheriff in executing its commands. Nixon v. Harrell, 
5 Jones, 76. 

A sale under execution will not be set aside on the ground of inadequacy of 
price, unless coupled with a suggestion of undue advantage, fraud or mistake. 
The party complaining has the right to have the facts found. The plaintiff in 
the execution, or any other interested person, may make the motion to set aside 
the sale. Beckwith v. Mining Company, 87 — 155. 

An execution under which a stranger purchases will not ordinarily be set aside 
upon the ground of irregularity, unless the purchaser has actual notice of such 
irregularity. Sheppard v. Bland, 87 — 163. 

When heirs must be bronghtin by 8Ci. /a.— Lands can not be sold under 
2iji, fa. issued and bearing teste after the death of the debtor, without bring- 
ing in the heirs by scire facias, and this though it is an alias fi. fa. Wood v. 
Harrison; i D. & B., 356. 

Personal property conyeyed after levy.— Where the sheriff seizes per- 
sonal property under an execution, the right of the defendant is not absolutely 
divested, but he can still sell and convey the property, subject to the lien of 
the execution and levy. Popelston v. Skinner, 4 D. & B., 156. 

Personal property left with defendant after levy.— An officer who lev- 
ies on personal property and leaves it in the possession of the defendant in the 
execution only loses his lien against other executions under which the property 
is seized and taken into possession. Mangum v. Hamlett, 8 Ire., 44. 

Sale under first exeention protects purchaser and plaintiff.— The first 
execution, finally acted on, protects both the purchaser under it and the plain- 
tiff in it. Ricks v. Blount, 4 Dev., 128. 

Sale of real estate by defendant after Jndgment in another connty.— 

Where an original f. fa. issued to one county and an a(ias to another, a sale 
by the defendant of his propertv situate in the latter county, made while the 
first writ was in the hands of the sheriff, is valid. Hardy v. Jasper, 3 Dev., 

158. 

Indnlgenice of exeention, effect.— If the plaintiff indulges the execution, 
and afterwards issues an alias, this indulgence does not affect the lien of the 
first writ as to the defendant or his vendee. Arrington v. Sledge, 2 Dev., 
359; Palmer v. Clarke, 2 Dev., 354. 



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264 CLARK'S CODE OF CIVIL PROCEDURE. 

Sale without dne adyertlsement Talld^ when.— In the absence of fraad, 
A sale under execution without due advertisement does not ritiate the sale. 
Woodley v. Gilliam, 67—237. 

Ste % 45(>. ^sf- 

Same property can not be re-sold. — Where there has been a sale under 
an execution, the same property can not be re-sold under a subsequent exccu- 
tion issued on the same juagment. Peebles v. Pate, 86 — 437. 

Judgment and exeentlon a lien from first daj of the term.— A judg- 
ment of a court reaches back to the 6rst day of a term, and an execution issued 
thereon overreaches a conveyance made during the term, on a day prior to the 
granting of the judgment. Finley v. Smith, 2 Ire., 225; Farley v. Lea, 4 D. 
& B., 169. 

Sheriff's deed relates back to the sale.— A sheriff's deed for land sold 
under execution relates back to the sale. Hoke v. Henderson, 3 Dev., 12. 

Exeeation after a year and a day. — Execution issued upon a jodgment 
after a year and a day, without any jctrf facias^ is irregular, and a sale of laod 
under U is void. Perkins v. Bullinger, i Hay., 422, (368). 

Note. — It is now three years. s!re § § 437 and 440, a#f/^, and cases there 
cited. 

Alias execntions. — The lien created by an execution is continued by an 
a/ias regularly issuing thereon. Brassfield v. Whitaker, 4 Hawks, 309; Yar- 
borough V. Bank, 2 Dev., 23. 

Where a series of executions issue on a judgment and have been iona fide 
acted on, the last of them relates to the teste of the first and binds the property 
of the defendant from that time. But where the original or any of the inter- 
mediate writs were never delivered to the sheriff, the lien is not carried back 
beyond the break. Spencer v. Hawkins, 4 Ire. Eq., 288. 

The priority of a levy under an undocketed judgment of the supreme court 
is lost, if the lien is not kept up by the issue of alias executions. Titman v. 
Rhyne, 89—64. 

(2) All leasehold estates of three years' dnration or more, 
owned by him ; 

(3) The equity of redemption and legal right of redemp- 
tion in lands, tenements, rents or other hereditaments, 
pledged or mortgaged by him. 

Lien commenees^ when. — The Hen of a fi. fa. upon the equitable interest 
of a debtor commences only from the time of its issuing and not from its teste, 
Morrisey v. Hill, 9 Ire., 66. 

Equity of redemption. — The equity of redemption can not be sold under 
an execution upon a judgment obtained on the mortgage debt. Camp v. Coxe, 
I D. &B., 52. 

The equity of redemption, when sold under execution, becomes a legal inter- 
est to the extent of enforcing it by a recovery from the mortgagor. Not only 
an eauity of redemption in an express mortgage can be sold under execution, 
but also the equitable interest under securities given in the nature of a mort- 
gage. Davis V. Evans, 5 Ire., 525. 

Distinction lietween tmsts and e^ties of redemption.— The distinc- 
tion between the sale of trusts and equities of redemption discussed by Pear 
son, C. J. Hutchison v. Symons, 67 — 156. 

Yendor^S interest* — The vendor's interest in land, contracted to be con- 
veyed on receipt of the purchase money, is not subject to execution. Tally v. 
Reid, 72—336. 



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Clark's code of civil procedure. 265 

Vendee^S interest, — The interest of a vendee under a contract of purchase 
(where title is reserved till purchase money is paid is not liable to sale under 
execution, unless the entire purchase money has been paid. Badham v. Cox, 
II Ire., 456; Frost v. Reynolds, 4 Ire. Eq.,494; Jennings v. Hardin, Bus. Eq., 

275. 

Where the purchaser of land receives what purports to be a deed, but which 
is in fact only an agreement to convey, the purchaser has no interest which can 
be sold under execution uijtil the entire purchase money is paid. Hinsdale v. 
Thornton, 74 — 167. 

The interest of a vendee of land who has fully paid the purchase money can 
be sold under execution, but the interest of a vendor under a contract to con- 
vey can not be sold. Tally v. Reed, 74—463. 

Until a vendee, under a contract of purchase of land, pays the purchase 
money in full, his interest is not subject to execution. A ritiht in equity is not 
a trust estate which can be sold under execution. Hinsdale v. Thornton, 

75—381. 

Where the deed under which the defendant acquired title, conveys the land 
charged with a liability for the notes given in part of the consideration, the 
land can be sold under an execution issued under a judgment obtained on the 
notes. RoUius v. Henry, 86—714. 

(4) Any lands, tenemenis, rents and hereditaments, or any 
goods and chattels, of which any person shall be seized or 
possessed in trust for him. 

Lien COmnieilceHy when. — An execution does not bind trust estates from 
tht teste, but from the time it was sued out. Williamson v. James, 10 Ire., 162. 

Resnltluglriist In a trust to secnre creditors.— Where a deed of trust 
to satisfy creditors is executed, a sale of the property under an execution against 
the trustor passes nothing. Brown v. Graves, 4 Hawks, 342; Barham v. Mas- 
sey, 5 Ire., 192. 

The interest of the trustor, in a deed in trust for creditors, after the payment 
of the debts secured by the deed can be sold under execution. Harrison v. 
Battle, I Dev. Eq., 541. 

The estate in property held in trust for creditors, with a resulting trust for 
the grantor, is not subject to sale under execution against the grantor. Mor- 
decai v. Paricer, 3 Dev., 425 ; Sprinkle v. Martin. 66 — 55 ; Burgin v. Burgin, 
I Ired., 160 ; Battle v. Petway 5 Ired., 576. 

The resulting trust of an insolvent debtoi* in a deed in trust can not be sold 
under an execution, but must be reached by equitable proceeding to subject it. 
McRary v. Fries, 4 Jones Eq., 233. 

The docketing of a judgment is a lien upon the equitable estate of the debtor 
in property conveyed by him to a trustee to secure certain debts, but such lien 
can not be enforced by execution. Supplemental proceedings must be resorted 
to. McKeithan v. Walker, 66 — 95 ; Hutchison v. Symons, 67 — 156. 

Where the cenfuis que trust are tenants in common.— Where the 

trustee holds for several tenants in common, the property is not liable to an 
attachment or execution against one of the cestuis que trust, McLeran v. Mc- 
Kethan, 7 Ired. Eq.. 70; Gillis v. McKay, 4 Dev., 172. 

What trusts estates can be sold* — Only such trust estates as are held in 
trust for the defendant in the execution solely can be sold under execution. 
Harrison v. Battle, i Dev. Eq., 541. 

What trnst estates can not be sold. — Where the purposes of trust require 
that the legal estate shall remain in the trustee, the property can not be sold 
under execution so as to divest the trustees of their estate. Davis v. Garrett, 
3 Ired., 459 ; McGee v. Hussey, 5 Ired., 255. 

34 

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266 CLARK*S CODE OF CIVIL PROCEDURE. 

Where A conveyed negroes in trust to B, "to he kept hired out or otherwise 
disposed of for the maintenance of C,*' C has no interest which can be sold un- 
der execution. McGee v. Hussey, 5 Ired., 255. 

Where the court can not decree a conveyance of the legal title at the suit of 
the cestui que trust the interest of the cestui que trust can not be sold under 
execution. Battle v. Petway, 5 Ired., 576. 

Where a husband buys land which is paid for with his money, but the title, 
by his direction, is made to a third person in trust for his wife, he has no such 
trust estate as can be sold under execution. Williams v. Council, 4 Jones, 206. 

Fraadaient trnsts. — Where the real purchaser of properly has the title fraud- 
ulently made to another, in secret trust for himself, his interest can not be sold 
under execution but must be reached by equitable proceedings. Morris v. 
Rippy, 4 Jones, 533; Cowing v. Rich, i Ire., 553. 

The act authorizing the sale of trust estates under execution only relates to 
trusts which would be enforced between trustee and cestui que trusts, and not 
to fraudulent trusts, in respect to which the court would not act at instance of 
either party. Page v. Goodman, 8 Ire. Eq., 16. 

Where a son bought land with the money of his father, and took the deed in 
his own name, but really for the use and benefit of his father and to defraud 
his father's creditors, such land is not liable to be sold under an execution 
against the father. The creditor's remedy is in equity. Jimmerson v. Dun- 
can, 3 Jones, 537; Gowing v. Rich, I Ire., 553. 

Mixed trusts. — A mixed trust is not subject to execution. Williams v. 
Williams, 6 Ire. Eq., 20. 

Eqnitable " rights'' not subject to execution*— The act (1812) subject- 
ing trust estates to sale under execution does not embrace mere equitable 
•* rights," but is confined to equitable " estates." Nelson v. Hughes, 2 Jones 
Ex., 33. 

Sec, 451, Oil sale of equity of redanption^ what sheriff to 
set forth in de^d. R. C, c, 45, s, 5. 1812, c, 830, s. 2, 
1822, c. 1172. 

The sheriff, selling the equity of redemption and legal 
right of redemption, as set forth in the preceding section, 
sub-division thrpe, shall set forth in the deed to. the pur- 
chaser thereof that the said estates were under mortgage at 
the time of judgment, or levy in the case of personal prop- 
erty, and sale. 

Sec, 452, StUe of trust estates ; purchaser holds the same 
discharged of trust, R, €,, c, 45, s, 4. 1812, c, 830, s, 1. 

Upon the sale under execution of the estates mentioned 
in section four hundred and fifty, sub-division four, the 
sheriff shall execute a deed to the purchaser, and the pur- 
chaser thereof shall hold and enjoy the same freed and dis- 
charged from &I1 encumbrances of the person so seized, or 
possessed in trust as aforesaid. 



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CLARK'S CODE OF CIVIL PROCEDURE. 267 

Sec* 45'i. Execution not to he levied on growittg crops. R. 
a, c. 44S, s. 1 1. 1H44, c. 35. 

No execution shall be levied on growing crops until the 
same are matured. 

Growing crops are the subject of levy and execution at common law. Smith 
V. Tritt, I D. & B., 241 ; State v. Poor. 4 D. & B., 384. 

Note. — This is now changed by ihc above act. 

An officer may (since the above act) levy upon a standing crop, provided it 
is matured. Shannon v. Jones, 12 Ire., 206. 

Sec. 454. Sale days under execution^ or by order. 1870-^79 
c. 216, 88. 2, 3. 1883, c. 94, 88. 1, 2. 

All real property sold under execution, or by order of 
court, shall be sold at the court house door of the county in 
which the property or some part thereof is situate, on the 
first Monday in every month, or during the first three days 
of the term of the superior court of said county, unless in 
the order directing the s^le some other place and time is 
designated ; and then it shail be sold as directed in such 
order, on any day except Sunday or holidays, after adver- 
tising the j-ame as required by law. 

Sale at improper time or place YOid. — Execution sales made at an im- 
proper time and place are void. Mayers v. Carter, 87 — 142 ; Mordecai v. 
Speight, 3 Dev.. 428 ; Avery v. Rose. 4 Dev., 549. 

A purchaser gets no title by a sale at an improper time or place as every one 
has cognizance of such an irregularity. State v. Rives, 5 Ired., 297. 

Sale at improper time and place yalid, when.— A sale under execution 
at an improper place is valid if assented to by the defendant in the execution. 
Biggs V. Brickell, 68 — 239. 

If sale is wade daring the week« — If the sale is made during the proper 
week the purchaser gets a good title, as the sheriff can postpone the sale from 
day to day, provided if this is not regularly done, the purchaser has no notice 
of irregularity. Brooks v. Radlcliff, n Ired., 321 ; Wade v. Saunders, 70—270. 

Sales for taxes. —The same rules apply in sales for taxes as are applicable 
to executions for private debts. Hayes v. Hunt, 85—303. 

Irregnlarities in failnre to adyertise^ &c.— Irregularities in the sale of 
land, such as failure of the sheriff to advertise, &c., if unknown to the pur- 
chaser, do not affect the validity of the sale. Avery v. Rose, 4 Dev., 549 ; 
Skinner v. Warren, 81—373 ; Hayes v. Hunt, 85—303. 

Lery after the return daj« — A sale (but not a levy) of land under an exe- 
cution after the return day thereof, but before it is returned, is valid, if made 
during the return term. Lanier v. Stone, I Hawks, 329 ; Mordecai v. Speight, 
3 Dev., 428. 

Sec. 455. ScUe may he postponed from, day to day, tmt not 
mare than six days. 1868-^9, c. 237, s. 9. 

The sheriff or other person making the sale, for the ab- 
sence of bidders or any other just cause, may postpone the 



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268 CLARK'S CODE OF CIVIL PROCEDURE. 

same from day to day, but uot for more ihan six days in 
all, and upon such postponement be sball post a notice 
thereof on tbe court bouse door of bis county. 

A sale can be postponed from day to day, not exceeding six days. Brooks 
V. Radcliff, 1 1 Ire., 321; Wade v. Saunders. 70 — 270. 

See. 450. Sale, how adverfifted. 1870-^7, c 2l0. lS81,c. 

No real property shall be sold under execution until no- 
tice of said hale sball have been published once a week for 
four weeks, immediately preceding such sale, in a news- 
paper, if any there be, published in the county where such 
sale is to be made : Provided^ that tbe costs of such publica- 
tion shall not in any ct»se exceed three dollars, to be taxed 
as other costs in such proceedings or action. 

If no newspaper be published in a county wherein the 
sale is to take place, then, in lieu of such publication, no- 
tice of such sale shall be posted for thirty days at the 
door of the court house of the county in which the sale 
is to take place, and at three other public places in such 
county. 

Sale a^onrued from the day adyertised. — A salt under execution, adver- 
tised to be made on Monday y and adjourned from day to day till Ffiday, is 
valid. Wade v. Saunders, 70 — 270. 

Failure to advertise* — A sale under execution is valid, notwithstanding the 
sheriff's failure to advertise according to law, if the purchaser have no notice 
of the omission. Hays v. Hunt 85 — 303; Avery v. Rose, 4 Dev., 549; Skin- 
ner V. Warren, 81 — 373. 

Hee. 457 • yotice of sale to he sei^ved ofi defentlant, and in 
eertain cases on. the gof-erttar. JSGS-^Op r. 237 f s. 11. 
lH70''7f c. 224, s. 1. 

In addition to the advertisement above required, tbe 
sheriff shall, in every case, at least ten days before a sale of 
real property under execution, serve a copy of so much of 
the advertisement as relates to the real property of any de- 
fendant on him personally, if he be found in the county, 
or on his agent, if be have a known agent therein, or if he 
can not be found within tbe county, and has no known 
agent therein, but his address be known, by mail to such 
address ; and the date of service shall be ascertained by the 



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CLARK'S CODE OF CIVIL PROCEDURE. 269 

usual course of the mail from the place where sent to the 
place of its address : Provided^ that in case of the sale under 
execution, or under the order of any court, of any property, 
real or personal, in which the state shall be interested as a 
stockholder or otherwise, notice in writing shall be served 
upon the governor and attorney general, at least thirty 
days before the sale, of the said time and place of sale, and 
under what process the sale is made, otherwise said sale 
shall be invalid. 

Sec. 458, Ail jrrirafe acts allowing land to be sold rej^ealed, 
1868''9, c. 237, s. 12. 

All private acts, by which lands in particular counties 
are required or allowed to be sold at places, or at times, 
other than those hereinafter prescribed, are hereby re- 
pealed. 

Sec. 459. Time of commencing scUe. B. C, c. 45, s. 17* 
1704, c. 41, s. 1. 

No sale under an execution or decree shall commence be- 
fore ten o'clock in the morning, or after four o'clock in the 
evening, of the day on which the sale is to be made. 

Sec. 460. Sale of person ttl property under execution, when 
and where advertised. K. C, c. 45, s. 16. 1808, c. 753, s. 
2. 1820, c. 1066, s. 1. 

No sale of personal property under execution shall be 
made until the same has been advertised for ten days at 
the door of the court house of the county in which the same 
is to be sold, and at three other public places in said county, 
and the advertisement shall designate the place and the 
time of said sale. 

Sec. 461. Penalty for selling cmitrary to law. It. C, c. 45, 
8. 18. 1820, c. 1566, s. 2. 1822, c. 1153, s. 3. 

Any sheriff, or other officer, who shall make any sale con- 
trary to the true intent and meaning of this sub-chapter, 
shall forfeit and pay two hundred dollars to any person 
suing for the same, one-half for his own use and the other 
half to the use of the county where the offence is committed. 



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270 CLARK S CODE OF CIVIL PROCEDURE. 

Sec. 462. No sale for want of bitlders^ what officer shall 
state ; penalty. R. C, c. 45, ». 19. 1815, c. 887, «. 1. 

Whenever a sheriflfor other oflBcer shall return upon any 
execution, that he has made no sale for want of bidders, he 
shall state in his return the several places at which he has 
advertised the sale of the property levied on, and the places 
at which he hath « ffered the same for sale ; and any officer 
failing to make such specification, shall, on motion, be sub- 
ject to a fine of forty dollars; and every constable, for alike 
omission of duty, shall be subject to a fine of ten dollars, 
for the use and benefit of the plaintifi^ in the execution : for 
which, on motion of the plaintiff, judgment shall be granted 
by the court to which the execution shall be returned ; or, 
in the case of a justice's execution, by any justice to whom 
the execution shall be returned : Provided, that nothing in 
this section, nor any recovery under the same, shall be a 
bar to any action for a false return against the sheriff or 
other officer. 

Sec. 463. Forthcoming bond may be taken for personal 
property. R. €., c. 45, s. 21. 1807, c. 731, s. 3. 1828, e. 
12, s. 2. 

if any sheriff, or other officer, who may have levied an 

execution or other process upon personal property, shall 

permit the same to remain with the possessor, such officer 

may take a bond for the forthcoming thereof to answer the 

said execution or process, which bond shall be attested by a 

credible witness; but the officer shall, nevertheless, in all 

respects, remain liable as heretofore to the plaintiff's claim. 

Form of bond* — An insensible condition in a bond renders it single ; but 
unmeaning words in the condition should be rejected so as to give the obligor 
the benefit of it. Foster v. Frost, 4 Dcv., 424. 

No form is prescribed for a forthcoming bond, and a condition that the prop- 
erty shall be forthcoming, or be delivered at the time and place of sale, is suffi- 
cient. It is not necessary to insert in such bond the names of the plaintiffs at 
whose instance the execution issued. The obligors in such bond are not dis- 
charged because the return day of the execution levied is before the day named 
in the bond for the forthcoming of the property. Grady v. Thrcadgill, 13 
Ired., 228. 

Daty of obligors* — The obligation of a forthcoming bond is only that the 
property shall be delivered to the officer at the time designated, and not that 
the execution shall be satisfied. Gray v. Bowles, i D. &. B.. 437. 



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CLARK'S CODE OF. CIVIL PLOCEDURE. 271 

W here, a forthcoming bond is civen, it is the duty of the obligors to put the 
officer in the quiet and peaceable possession of the property at the time and 

flacc specified, otherwise their bond will be forfeited. Poieet v. firyson, 7 
re., 337. 

Sec. 464. Surety to be fumislied with a list of the property. 
R. C, c. 45, 8. 22. 1S44, c. H4. 1840, c. 50. 

When 8ucb bond t^hall be taken the officer shall specify 
therein the property levied upon, and shall furnish to the 
surety a list of the property in writing, under his hand, at- 
tested by at least one credible witness, and stating therein 
the day of sale; and the property so l«vied upon shall be 
deemed in the custody of the surety, as the bailee of the 
officer ; and all other executions thereafter levied on said 
property shall create a lien on the same from and after the 
respective levies, and shall be satisfied accordingly out of 
the proceeds of the sale of said property ; but the officer 
thereafter levying shall not take the property out of the cus- 
tody of the surety : Provided, that in all such cases sales of 
chattels shall take place within thirty days after the first 
levy; and, if sale shall not be made within the time afore- 
said, any other officer who may have levied upon the 
properly may seize and sell the same. 

Sec. 465. Officer, how to proceed on bond, if condition 
broken. JR. €., c. 45, 8. 23. 1822, c. 1141, 8. 1. 

If the condition of such bond be broken, the sherifi^ or 
other officer, on giving ten days' previous notice, in writing, 
to any obligor therein, may on motion have judgment 
against him in a summary manner, before the superior 
court, or before a justice of the peace, as the case may be, 
of the county in which such officer may reside, for all such 
damages as said officer may have sustained, or be adjudged 
liable to sustain, not exceeding the penalty of the bond, to 
be ascertained by a jury, under the direction of the court or 
justice. 

Sec. 466. Officer aUowed pay for keeping horses, ^c. jR» €•, 
c. 45, 8. 25. 1807, c. 731, s. 1. 

The court or justice shall make a reasonable allowance 

to officers for keeping and maintaining horses, cattle, hogs 



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2/2 CLARK S CODE OF CIVIL PROCEDURE. 

or sheep, and all other property, the keeping of which may 
be chargeable to them, taken into their custody under legal 
process; and such allowance may be retaine«l by the oflB- 
cersoutof the sales of the property, in preference to the 
satisfaction of the process under which the property was 
seized or sold. 

8ec» 407* Offcer to make out his account and flle it with cac- 
ecution. B. €., c. 43, 8. 20. 1807, c. 7 SI, s. 2. 

. Every such oflScer shall make out his account, and if re- 
quired shall give the debtor or his agent a copy thereof, 
signed by his own hand, and shall return the account, with 
the execution or other process under which the property 
has been seized or sold, to the justice or the court to whom 
the execution or process is returnable, and shall swear to 
the correctness of the several items therein set forth, other- 
wise he shall not be permitted to retain ttie same. 

Sec* 468. Purchaser at execution sale may recover of de- 
fendant in the execution^ when the title to property sold is 
defective. B. C, c. 45, s. 27. 1807, c 723. 

Where property, real or personal, shall be sold on any 
execution or decree, by any officer authorized to make the 
sale, and the sale is legally and in good faith made, and 
such property be not the property of the person against 
whose estate such execution or decree may have issued, by 
reason of which the purchaser may have been deprived of 
the same property, or may have been compelled to pay 
damages in lieu thereof to the owner; in every such case 
the purchaser, his executors or administrators may sue the 
person against whom such execution or decree may have 
issued, or the person legally representing him, in a civil 
action, and recover such sum as he may have paid for the 
property, with interest from the time of payment : Provided^ 
that such property, if the same is personal property, be 
present at the sale, and actually delivered to the purchaser. 

Purchaser can recover of defendant In execntion^ when.— When the 

title to property sold is defective, the purchaser may recover of the defendaut in 
the execution. Browrfv. Smith, 8 Jones, 331 ; McDonald y. McLean, 60 N. C. 
(I Winst.). 120 ; Wall v. Fairley, 77—105 ; Holliday v. McMillan, 83—170. 



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CLARK'S CODE OF CIVIL PROCEDURE. 273 

CcntfCt a purchaser at execution sale, who gets a defective title, has no right 
to take the place of the creditor by substitution. Laws v. Thompson, 4 Jones, 
104. 

Parehaser subrogated to rights of execatlon creditor.—Where the 
purchaser at an execution sale fails to obtain a title by reason of the insuffi- 
ciency of the levy, he is substituted to the rights of the execution creditor, to 
the extent that such creditor has been benefited by the sale. Pemberton v. 
McRae. 75—497. 

Where plaintiff in the execution is the purchaser.— Where property not 
belonging to the defendant in the execution is sold under such execution and 
bought by the plaintiff at a price sufficient to pay the debt, this is a satisfaction 
of the judgment, though the property is recovered from the plaintiff in a suit 
by the owner, and though the judgment is not marked satisfied. The plain- 
tiff 's remedy is by Rev. Stat., ch. 45, sec. 22. Holcombe v. Loudermilk, 3 
Jones. 491. 

Sec. 469. Defendant dying in ejcecutionf debt not diS" 
charged ; new execution against the property. It. C, c. 
45, 8. 2. 21 Jatnea I, c. 24, 8. 223. 

Parties, at whose suit the body of aDy person shall be 
taken in execution for any judgment recovered, their execu- 
tors or administrators may, after the death of the person so 
taken and dying in execution, have new execution against 
the property of the person deceased, as they might have 
had if such person had never been in execution. 

Sec. 470. Clerks to issue executions within six weeks / pen^ 
aUy of one hundred dollars for failure. M0 C, c. 45, 8* 
29. 1850, c. 17, 88. 1,2,3. 

The clerks of the superior court shall issue executions on 
all judgments rendered in their respective courts, unless 
otherwise directed by the plaintiff therein, within six weeks 
of the rendition of the judgment, and shall indorse upon 
the record tht? date of such issue ; and if the executions is- 
sued are not returned satisfied to the courts to which they 
are made returnable, the clerks shall issue aliod executions^ 
within six weeks thereafter, unless otherwise instructed as 
aforesaid. And every clerk who shall fail to comply with 
the requirements of this section, shall be liable to be 
amerced in the sum of one hundred dollars, for the benefit 
of the party aggrieved, under the same rules that are pro- 
vided by law for amercing sherifiis, and shall be further lia- 
ble to the party injured by suit upon his bond. 

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274 CLARK'S CODE OF CIVIL PROCEDURE. 

Duty of elerk* — The clerk should endorse on the record the date of the issue, 
and an endorsement made on the execution is not a compliance with the statute. 
Bank v. Stafford, 2 Jones, 68. 

SembU^ that a clerk will protect himself from amercement by issuing the exe- 
cution to his own county in the absence of special instructions from the plaintiff. 
Bank v. Stafford, 2 Jones, 68. 

Depatj clerk can Issue* — A deputy clerk has power to issue executions in 
the name of the clerk, and may perform all the duties of the office, except such 
as are judicial in their character, or where a statute specifically provides other- 
wise. Miller v. Miller, 89 — . 

Exeeatioil is Issued, when* — The execution is not issued until the derk 
hands it to the sheriff, or to the party, or to his agent. State v. McLeod, 5 
Jones, 318. 

Who may more to amerce* — The party seeking to enforce an amercement 
under this section must show himself to be the party aggrieved by the default. 
Simpson v. Simpson, 63 — 534. 

Ordinance of June 28, 1866.— The ordinance of June 23, 1866, pro- 
tected the clerk from this penally for failure to issue execution upon judgments 
where the debt was contracted prior to May i, 1865. Badham v. Jones, 64 — 
655. But that ordinance is no protection where the cause of action has accrued 
since May i, 1865. Williamson v. Kerr, 88 — 10. 

Note. — The ordinance is now repealed. 

Sec, 4:71* Officer to prepare deeds for property sold. JR. 
€., c. 45 9 s. 30. 1848 p c. 39. 

SheriflFs or other oflBcers, selling lands by authority of 
any execution or process, shall, upon payment of the price, 
prepare, execute and deliver to the purchaser a deed for the 
property purchased : Provided^ that the purchaser of land 
shall furnish the officer with a description of the land. 

Bemedj to compel the sheriff to execute deed.— The proper remedy to 
compel a sheriff to execute a deed to the purchaser at execution sale is by a mo- 
tion in the cause, not by an independent action. Patrick v. Carr, 60 — 633, 
(Winston's Eq., 87) ; Fox v. Kline, 85 — 173. 

Where purchaser participates in sheriff's dereliction.— Where the 

purchaser is implicated in the sheriff 's dereliction in failing to advertise ac- 
cording to law, he can not call for a conveyance. Skinner v. Warren, 81 — 373. 

Effect of recitals in sheriff's deed* — Recitals in a sheriff 's deed zxt prima 
facie evidence of an execution sale, notwithstanding the return upon the exe- 
cution may be imperfect. The fact that there was a sale may also be proved 
by parol. Parol testimony is admissible to show that the land levied upon was 
sola as one tract, though described in the sheriff's deed as two tracts. (The 
evidence in this case goes to show that the land was designated and sold in one 
body.) The deed in such case, reciting in substance the execution under which 
the land was sold, and purporting to convey title to the purchaser and his heirs, 
shows that the sheriff exercised his power in the premises, and conveys the title 
of the defendant in the execution. Miller v. Miller, 89 — . 

Sec. 472. Costs on execution satisfied in part or in whole to 
be paid to tderk ; penalty, forty dollars for failure. JR. S., 
€. 76, s. 5. 1822, c. 1149, s. 1. 

The sheriflf or other oflBcer shall pay the costs on all ex- 
ecutions which shall be satisfied in whole or in part, to the 



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CLARK S CODE OF CIVIL PROCEDURE. 



275 



clerk of the coart from which the execution issued, and to 
no other person, on the second day of the term of the court ; 
and any such oflScer making default herein shall forfeit and 
pay forty dollars for the benefit of the party aggrieved, un- 
der the same rules that are provided by law for amercing 
sheriffs. 



CHAPTER TWO. 

DEFENDANT'S CLAIM FOB mPBOVEHENT BE- 
FORE ISSUING EXECUTION. 



Section. 

473. Petition to be filed by 

claimant; execution sus- 
pended; jury to assess 
damages and allowance. 

474. Jury to estimate the annual 

value of land. 
476. Defendant not liable for 
more than three years, un- 
less he claims improve- 
ments. 

476. Value of defendant's im- 

provements to be esti- 
mated. 

477. Improvements to balance 

rents. 

478. Jury to find a verdict for 

the balance for plaintiff or 
defendant 

479. Balance due defendant to 

constitute a lien until paid. 

480. Plaintiff claiming a less es- 

tate, and paying defend- 
ant allowance, may re- 
cover out of remainder- 
man. 



Section. 

481. Does not apply to action 

brought by mortgagee. 

482. Defendant claiming allow- 

ance, plaintiff may have 
his estate valued without 
improvement. 

483. Value of premises, how 

made. 

484. Plaintiff may elect to let 

defendant take prenusee 
at valuation. 

485. Payments to be made in 

court ; land bound ; if pay- 
ments not made, land 
sold. 

486. When plaintiff is a feme 

covert, minor or insane, 
what is to be done with 
proceeds. 
^7. When defendant evicted by 
force of a better title, he 
or his representatives may 
recover from plaintiff. 



Sec. 473. Petition to be filed by claitnant ; execution sus" 
pended ;jury to assess damages and allowance. 1871-^2, 

c. 14:7, s. 1. 

Any defendant against whom a judgment shall be ren- 
dered for land, may, at any time before the execution of 
such judgment, present a petition to the court rendering 



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2/6 CLARK'S CODE OF CIVIL PROCEDURE. 

the same, stating that he, or those under whom he claims, 
while holding the premises under a^color of title believed 
by him or them to be good, have made permanent im- 
provements thereon, and praying that he may be allowed 
for the same, over and above the value of the use and occu- 
pation of such land ; and thereupon the court may, if satis- 
fied of the probable truth of the allegation, suspend the ex- 
ecution of such judgment and impanel a jury to assess the 
damages of the plaintiff and the allowance to the defendant 
for such improvements: iVovicfed, that in any such action 
such inquiry and assessment may be made upon the trial 
of the cause. 

** Betterments*' can not be allowed, when.— Where the husband of a 
feme covert does not join in a conveyance of her land, and her privy examina- 
tion is not taken, the attempted conveyance is a nullity, and the vendee hav- 
ing legal notice of the invalidity of his title can not maintain a claim for ''bet- 
terments.** Neither can one who acquires the estate of such first purchaser 
under a mortgage sale, claim for betterments as such, but he will be entitled to 
an equitable counterclaim to the demand of the real owner for the rents and 
profits of the land. Scott v. Battle, 85—184. 

ImproTements made by the life tenant* — Improvements put upon land 
by a life tenant during his occupancy are not a charge upon it when it passes 
to the remainderman, but the value of improvements made in good faith after 
the estate has expired, is a counterclaim against the claim for rents and profits. 
Merritt v. Scott, 81—385. 

ImproTenients made by a tenant In common.— Where a tenant in common 
has improved a part of the common land, he is entitled, upon the partition of 
the land, to have the part so improved allotted to him at its original value. 
Pope V. Whitehead. 68 — 191 ; Jones v. Garland, 2 Jones Eq., 502. 

ImprOTements made bj mortgagor. — Improvements put upon land by the 
mortgagor can not be claimed as betterments. They are a mere additional se- 
curity for the debt. Wharton v. Moore, 84 — 479. ' 

Improrements made by pnre baser of land bj parol.— Where the pur- 
chaser's title to land is invalid by reason of the contract of purchase having 
been by parol, he is entitled to be refunded the purchase money and the value 
added to the land by his betterments before he can be ousted. Daniel t. 
Grumpier, 75 — 184. 

This seetlon does not apply to landlord and tenant.— The provisions of 
this section do not apply where the relation of landlord and tenant is shown to 
exist. Dunn v. Bagby, 88 — 91. 

Petition can only be filed after Judgment. —The benefit of this section 
can only be had by a petition filed after judgment. Merritt v. Scott, 81—385; 
Gondry v. Gheshire, 88 — 375. 

Sec, 474, Jury to estitnaie the annual value of iandm 
1871''2,€. 147,8.2. 

The jury in assessing such damages, shall estimate against 
the defendant the clear annual value of the premises during 



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CLARK'S CODE OF CIVIL PROCEDURE. 2^^ 

the time he was in possession thereof, exclusive of the use 
by the tenant of the improvements thereon made by him- 
self or those under whom he claims, and also the damages 
for waste, or other injury to the premises committed by the 
defendant. 

Defendant allowed improTements^ chargeable with rents.— Where the 

defendant has been credited with the value of the ** betterments" placed by him 
on the land, he should be charged with the actual rent received by him, though 
greatly enhanced by the improvements. WethercU v. Gorman, 74 — 603. 

Rental Talne^ how shown* — Evidence of the annual rental value of land 
for a preceding period is competent to show an average annual value. Perry v. 
Jackson, 88 — 103. 

Sec. 475, Defendant not liable for more than three years, 
ufUess he claims improvements. 187 1^^^, c. 147 9 s. 3* 

The defendant shall not be liable for such annual value 
for any longer time than three years before the suit, or for 
damages for any such waste or other injury done before said 
three years, unless when he claims for improvements as 
aforesaid. 

Sec. 470. Value of defendant's improvements to be esti" 
mated. 1871-'2, s. 147, s. 4. 

If the jury shall be satisfied that the defendant, or those 
under whom he claims, made on the premises, at a time 
when there was reason to believe the title good under which 
he or they were holding the said premises, permanent and 
valuable improvements, they shall estimate in his favor, the 
value of such improvements as were so made before notice, 
in writing of the title under which the plaintiff claims, not 
exceeding the amount actually expended in making them 
and not exceeding the amount to which the value of the 
premises is Actually increased thereby at the time of the 
assessment. 

Yalne of ImprOTements^ how estimated* — In stating an account of rents 
and profirs of real estate, where the defendant is entitled to an allowance for "bet- 
terments," he should be credited with the enhanced value of the property by 
reason of the repairs and improvements and not the cost thereof. WethereU 
v. Gorman. 74--^3 ; Hill v. Brower, 76^124. 

The value of improvements is to be estimated, not by their cost, but by the 
extent to which they have enhanced the value of the land. Smith v. Stewart, 
83 — 406 ; White v. Jones, 88 — 166 ; Reed v. Exum, 84—430. 



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278 CLARK'S CODE OF CIVIL PROCEDURE. 

Sec. 4:77* Itnprtkvetnents to biUance rents. 1871^^2, c 147 f 

If the sum estimated for the improvements exceed the 
damages estimated by the jury against the defendant as 
aforesaid, they shall then estimate against him for any time 
before the said three years, the rents and profits accrued 
against, or damages for waste or other injury done by him, 
or those under whom he claims, so far as may be necessary 
to balance his claim for improvements; but in such case he 
shall not be liable for the excess, if any, of such rents, profits, 
or damages beyond the value of improvements. 

CancellatioB of deed made under dnress. — Where a deed, executed an- 
der duress, is cancelled, the plaintiff is entitled to a restoration of the land 
with compensation for its use, and such damages as it may have st^stained. The 
defendant is entitled to a counterclaim for the increased value from the im- 
provements (not the cost of the improvements) put upon the land by him, and 
for the purchase money. Reed v. Exum, 84 — 430. 

Yolontary rescission of contract for sale of land.— Upon the voluntary 
rescission of a contract of sale of land, the vendee in possession is entitled to a 
return of the purchase money, and the vendor to a fair rent for the premises, 
deducting the added value given to the land by the betterments placed thereon 
by the vendee. Smith v. Stewart, 83 — 406. 

Pnrchaser of land from /ei»*€ corerf.— Where, however, the husband 
of a feme covert does not join in a conveyance of her land, and her privy ex- 
amination b not taken, it is a nullity, and the purchaser is not entitled to claim 
the purchase money for ** betterments," nor would one who bought at a sale 
foreclosing a mortgage executed on the land by such purchaser be in a better 
position. But the latter would be entitled to a fair allowance, as an equitable 
counterclaim, for the added value given to the property by such betterments 
against the demand of the real owner for rents and proBts. Scott v. Battle, 
85—184. 

Where defendant is credited with repairs.— When a defendant is cred- 
ited with such repairs, he should be charged with the actual rent received after 
thev were made, though it was greatly enhanced by such improvements. Weth- 
erell v. Gorman, 74 — 603. 

Sec. 47s. Jury to find a verdict for the balance f for plain-- 
tiff or defendant. 1871''2, c. 147 f 8. 6. 

After offsetting the damages assessed for the plaintiff, and 
the allowances to the defendant for the improvements, if 
any, the jury shall find a verdict for the balance for the 
plaintiff or defendant, as the case may be, and the judg- 
ment shall be entered therefor according to the verdict. 



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CtARK'S CODE OF CIVIL PROCEDURE. 279 

Sec. 479. Balance due defendant to constitute a lien until 
paid. 1871''2, c. 147, s. 7. 

Any such balance due to the defendant shall constitute 
a lien upon the land recovered by the plaintiff until the 
same shall be paid. 

See. 480. Plaintiff claiming a leas estate, and paying de^ 
fendant allowance, may recovei* out of remainderman. 
1871''2,c.l47,s.8. 

If the plaintiff claim only an estate for life in the land 
recovered, and pay any sum allowed to the defendant for 
improvements, he or his personal representative may recover 
at the determination of his estate from the remainderman 
or reversioner the value of the said improvements as they 
then exist, not exceeding the amount as paid by him, and 
shall have a lien therefor on the premises, in like manner 
as if. they had been mortgaged for the payment thereof, and 
may keep possession of said premises until it be paid. 

Sec. 481. Does not apply to action brought by m^ortgagee. 
1871''2, c. 147, s. 9. 

Nothing herein shall extend or apply to any suit brought 

by a mortgagee or his heirs or assigns against a mortgagor 

or his heirs or assigns for the recovery of the mortgaged 

premises. 

Improvements put upon land by a mortgagor become additional security 
for the debt, and do not entitle him, or any one claiming under him, to any 
part of the proceeds of a foreclosure sale unless there is a surplus after satisfy- 
ing the debt. Wharton v. Moore, 84 — 479. 

Sec. 482. Defendant daim^ing aUowance, plaintiff may 
have his estate vatusd without improvement. 1871^^2, c. 
147, s. 10. 

When the defendant shall claim allowance for improve- 
ments, the plaintiff may, by entry on the record, require 
that the value of his estate in the premises without the im- 
provements shall also be ascertained. 

Sec. 483. Value of premises, how m^ade. 1871^^2, c. 147, 
s. 11. 

The value of the premises in such cases shall be esti- 
mated as it would have been at the time of the inquiry, if 



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280 CLARK'S CODE OF CIVIL PROCEDURE. 

DO such improvements had been made on the premises by 
the tenant, or any person under whom he claims, and shall 
be ascertained in the manner hereinbefore provided for esti- 
mating the value of improvements. 

Sec. 484. Plaintiff may eie^t to let defendant take pretn^ 
ises at valuatton. 187 If 2, c. 147 , 8. 12. 

The plaintiff in such case, if ju^Igment is rendered for 
him, may, at anytime during the same term, or before 
judgment is rendered on the assessment of the value of the 
improvements, in person or by hib attorney in the cause, 
enter on the record his election to relinquish his estate in 
the premises to the defendant, at the value as ascertained, 
and the defendant shall thenceforth hold all the estate that 
the plaintiff had therein at the commencement of the suit : 
Provided^ he pay therefor the said value with interest in 
the manner in which the court may order it to be paid. 

Sec. 485. Payments to he made in court; land bound; if 
payments not made, land sold. 1871^^2, c. 157 f s. 13. 

The payments shall be made to the plaintiff, or into court 
for his use, and the land shall be bound therefor, and if the 
defendant fail to make the said payments within or at the 
times limited therefor respectively, the court may order the 
land to be sold and the proceeds applied to the payment of 
said value and interest, and the surplus, if any, to be paid 
to the defendant; but if the said net proceeds beinsuflBcient 
to satisfy the said value and interest the defendant shall 
not be bound for the deficiency. 

Sec. 486. When the plaintiff is a feme covert, minor or in^ 
sane, what is to be done with proceeds. 1871^^2, c. 147 f s. 
14. 

If the party by or for whom the land is claimed in the 
suit be a feme covert^ minor or insane, such value shall be 
deemed to be real estate, and be disposed of as the* court 
may consider proper for the benefit of the persons inter* 
ested therein. 



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CLARK'S CODE OF CIVIL PROCEDURE. 



281 



Sec. 487. When defendant evicted by force of a better 
title f lie or his rejyresentatives may recover from plaintiff. 
1871''2, c. 147, s. IS. 

If the defeudant, his heirs or assigns shall, after the prem- 
ises are so relinquished to him, be evicted thereof by force 
of any better title than that of the original plaintiff, the 
person so evicted may recover from such plaintiff or his 
representatives the amount so paid for the premises, as so 
much money had and received by such plaintiff in his life- 
time for the use of such person, with lawful interest thereon 
from the time of such payment. 



CHAPTER THREE. 

PROCEEDINGS STTFPLEMENTABY TO THE EXE- 
CUTION, 



Section. 

488. (1) Execution returned un- 

satisfied, order to answer 
concerning Ills property. 

(2) Execution issued, not 
returned, order to issue 
upon affidavit. 

(3) Either party to examine 
-witness. 

(4) Debtor leaving the state, 
or concealing himself, up- 
on affidavit of plaintiff that 
he has property which he 
refuses to apply, may be 
arrested and ordered to 
give undertaking. 

(6) No person to be excused 
from answering because it 
may criminate him, nor 
because he has executed a 
conveyance, but his an- 
swer not to be used against 
him in any criminal prose- 
cution. 

(6) Court or judge may for- 
bid transfer of property. 

489. Execution issued, any debt- 

or of judgment debtor may 
pay to sheriff. 

3e> 



Section. 

490. Execution 



issued and re- 



I turned, upon affidavit, or- 

I der to issue to any person 

1 having property of judg- 

I ment debtor or to any per- 

I son indebted to him over 

I ten dollars, to appear and 

I answer; proceedings 

! against joint debtors. 

! 491. Witness required to testify 

as on trial of an issue. 
I 492. Party or witness to appear 
I before referee and com- 

1 pelled to answer under 

oath ; examination certi- 
fied to court or judge ; cor- 
• porations to answer by of- 

I ficer. 

I 493. Property of debtor not ex- 
empt from execution to be 
applied to payment of 
, judgment; exception. 

494. Judge to appoint receiver; 
transfer of proper forbid- 
I den; other creditors hav- 

ing instituted supplemen- 
tary proceedings to be no- 
I tified ; no more than one 

' receiver appointed. 



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282 



CLARK*S CODE OF CIVIL PROCEDURE. 



Section. 

495. Clerk of superior court to 

file order, record it, pro- 
vide receiver with a copy ; 
receiver to be vested with 
property; receiver subject 
to control of judge. 

496. Order to be filed in the ofllce 

of what clerk, before vest- 
ed with real property. 



Section. 

497. Property claimed by a third 

party, or debt denied, re- 
ceiver to bring action, and 
in meantime transfer or 
payment forbidden. 

498. Judge may order a reference 

to report the evidence or 
facts. 

499. Costs to be allowed. 

500. Disobedience to order; pun- 

ishment. 



Sec. 488. Exectition returned unsatisfied, order to answer 
concerning his property. C. €. P., s. 264. 1868-^9, c. 95, 

s. 2. 

(1) When an execution against property of the judgment 
debtor, or any one of several debtors in the same judgment, 
issued to the sheriff of the county where he resides or has a 
place of business, or if he do not reside in the state, to the 
sheriff of the county where a judgment roll or transcript of 
a justice's judgment is filed, is returned unsatisfied, in whole 
or in part, the judgment creditor, at any time after such 
return made, and within three years from the time of issu- 
ing the execution, is entitled to an order from the court to 
which the execution is returned, or for the judge thereof, 
requiring such debtor to appear and answer concerning his 
property, before such court or judge, at a time and place 
specified in the order, within the county to which the exe- 
cution was issued. 

Requisites before tlie order sliovld issue.— To authorize the grant of an 

order of examination under supplemental proceedings, there should be made to 
appear by affidavit or otherwise : (i) The want of known property liable to exe- 
cution, which is proved by the sheriff 's return of unsatished ; (2) The natt- 
existence ol an equitable estate in land within the lien of the judgment ; (3) The 
existence of property, choses in action and things of value, unaffected by any 
lien and incapably of levy. Hinsdale v. Sinclair, 83 — 338. 

No demand necessary* — No previous demand on debtor is required. Weil- 
ler V. Lawrence, 81 — 65. 

Notice not necessary. — Eight days* notice to debtor not necessary. Wcil- 
ler V. Lawrence, 81 — 65. 

Purpose of this section* — The purpose of the Code was, to give proceed- 
ings supplementary to execution only in case the debtor has no proi>erty liable 
to execution or to what is in the nature of execution, to wit : proceedings to 
enforce a sale. Hutchinson v. Symons, 67 — 156; McKeithan v. W^ker, 
66—95; Weiller v. Lawrence, 81 — 65; Hinsdale v. Sinclair, 83 — 338. 



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CLARK'S CODE OF CIVIL PROCEDURE. 283 

Affldarit* — An aflSdavit is insufficient to warrant the examination of the 
judgment debtor, if it does not negative property in the defendant liable to ex- 
ecution and the existence of equitable interests which may be subjected by sale 
in the nature of execution, but the omission of such negative averments may 
be remedied by amendment at the bearing. Weiller v. Lawrence — 8i — 65. 

If affidavit is defective it can be amended at the trial. Weiller v. Lawrence, 
81 — 65; Hasty v. Simpson, 77 — 69. 

The affidavit required by this section is sufficiently verified if made before a 
commissioner of this state, resident in another state, and authenticated by his 
official signature and seal. Young v. Rollins, 85 — 485. 

Execution retarned before the return daj^ when.— A sheriff may re- 
turn an execution before the return term thereof, if it be satisfied, or if there 
can be no property found out of which to satisfy the same. Whitehead v. Hel- 
len, 74—679. 

From what COUntj to Issue* — Where a judgment was rendered in one 
county and docketed in another, proceedings supplementary to execution should 
be instituted in the county in which the judgment was rendered, as the action 
is pending in that county until the judgment is satisfied. Hutchinson v. Sy 
mons, 67 — 156. 

Where defendant Is to be examined.— Supplemental proceedings should 
be instituted in the county where the judgment was rendered, but the place 
designated for the defendant to appear and answer must be in the county 
where the defendant resides. Hasty v. Simpson, 77 — 69. 

Joint debtors. — Joint debtors can be examined under this section. Weiller 
v. Lawrence, 81 — 65. 

The ptovisions of § § 488 and 490 apply to cases in which there may be either 
one or several judgment debtors, but § 489 only applies in cases where there 
is but one judgment debtor, In other words, if the judgment be against 
A, and D is his debtor, he may discharge his debt by paying over to the sheriff; 
but if the judgment be against A, B and C, jointly and severally liable, and D 
owes them all, he can not discharge himself by paying over to the sheriff. 
Howey v. Miller, 67 — 459. 

Note. — § 489 is now changed in this respect. 

Distinction between iipplieation for order before and after return of 
execution. Under § 488 and g 490 there is a distinction made in the re- 
quirements for proceedings supplementary to execution, where the execution is 
returned unsatisfied, and where the execution is issued, but before its return. 
In the former case an affidavit that the execution has been returned unsatisfied 
and that the defendant has property or choses in action which ought to be sub- 
jected, is sufficient to warrant the proceedings; in the latter, the affidavit should 
show that the debtor has no property which can be reached by execution, and 
that he has property or choses in action which he unjustly refuses to apply to 
the satisfaction of the judgment. Hutchinson v. Symons, 67 — 156, 

Proceedings Instituted before sale of property lerled upon.— Supple- 
mental proceedings may be commenced before the sale of the property levied 
upon, on affidavit, or other proof of its insufficient value. But no final order 
can be made appropriating to the creditor any property discovered until the 
property previously levied on has been exhausted. McKeithan v. Walker, 
66—95. 

Death of Judgment debtor before appointment of recelyer.— In supple- 
mentary proceedings, if the judjgment debtor die before the appointment of a 
receiver is filed in the clerk's office, no lien is acquired by the receiver or cred- 
itor as against the administrator of a judgment debtor. Rankin v. Minor, 
72—424. 

Death of a non-resident debtor. — Upon the death of a non-resident in- 
testate, leaving assets in this state, they are to be applied to the payment of 
the claims of his resident creditors, if there beany such, in the order prescribed 



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284 CLARK*S CODE OF CIVIL PROCEDURE. 

by our law, and not by that of his domicil. Such assets are to be collected by 
an administrator appointed here, and not by the creditors. The " supple- 
mental proceedings do not apply to such a case, but are intended to supply 
the place of the former proceedings in equity, where relief was given after a 
creditor had recovered a judgment at law, and was unable to obtain a satisfac- 
tion under further legal process. Whera one who is charged in supplemental 
proceedings as holding property belonging to a judgment debtor, claims such 
property as his own, the question can not be decided in the course of such pro- 
ceedings, but must be settled by an action. Carson v. Oates, 64 — 115. 

Priority of creditor first mOTing. — The judgment creditor who first in- 
stitutes supplemental proceedings is entitled to priority of lien thereunder, un- 
less he lose such right by a failure to pursue his remedy with diligence. Parks 
V. Sprinkle, 64 — 637. 

Irregular process no Justification. — Irregular process, after it has been 
set aside, is no justification to the plaintiff in the action or his attomejrs and 
aiders. Woody v. Jordan, 69 — 189. 

Against whom supplementary proceedings We.—Qu^fr. Whether, un- 
der this and the following sections of this chapter, there may not be a sufficient 
means of enforcing judgments against corporations in cases formerly requiring 
the peculiar remedy of mandamus? Winslow v. Com'rs, 64 — 218. 

Supplementary proceedings lie in favor of a creditor for the recovery of a 
debt contracted by a lunatic prior to his lunacy. Blake v. Respass, 77 — 193. 

Proceedings supplemental to execution lie against a private corporation char- 
tered by the legislature and organized for purposes of the private gain of its 
shareholders. La Fountain v. Underwriters, 79 — 514. 

Distributive share can be subjected. — A judgment creditor whose execu- 
tion has been returned unsatisfied, can not mamtain an action a^inst an admin- 
istrator to subject a distributive share due to a judgment debtor. He must 
proceed by supplementary proceedings. Rand v. Rand, 78 — 12. 

A creditor's bill can be resorted to in lieu of supplemental proceed- 
ings* — Supplemental proceedings are intended to perfect the creditor s remedy 
in the same action. But a new and independent suit may be instituted by the 
plaintiff for the benefit of all the creditors against additional defendants whose 
indebtedness it proposes to call in and subject to the demands of all the cred- 
itors, as here where an execution against the corporation being returned unsat- 
isfied, the plaintiff began a creditors' bill against the stockholders to subject 
the, unpaid instalments on their stock. Bronson v. Ins. Co., 85 — 411. 

Bent may be subjected. — The right of a landlord to the part of a crop, is 
a mere chose in action, which a creditor may, perhaps, make available under 
supplemental proceedings, but his execution gives him no right to separate a 
part of the crop, as such rental, and then levy on and sell the same. Walston 
v. Bryan, 64 — 764. 

Only the creditors who are parties to supplementary proceedings par- 
ticipate in the benefit resulting. — Those creditors only are entitled to the 
benefit of supplemental proceedings, who bring themselves within the provis- 
ions of the statute by instituting such proceedings. Where A obtained a judg- 
ment, and alone instituted supplemental proceedings against B, and a receiver 
was appointed, and before he filed his bond B paid off the judgment, and the 
receiver, having afterwards filed the requisite bond, brought suit against one 
C, b^ the payment of the judgment by B, the receiver was fundus officio ; 
and It was error in the court below to allow the pleadings to be so amended as 
to make other creditors parties plaintiff. Righton v. Pniden, 73 — 61 ; LaFon- 
taine v. Southern Underwriters, 79 — 514. 

Creditors not parties to supplemental proceedings are not entitled to share in 
any of the benefits arising therefrom. La Fountain v. Southern Underwriters, 
79—514. 



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CLARK'S CODE OF CIVIL PROCEDURE. 285 

Do not apply to Judgments of the Hupreme court till docketed in the 
superior court* — The provisions of this and the following sections do not ap- 
ply 10 judgments rendered in the supreme court until they are entered in the 
superior court by a proper order. Phillips v. Trezevant, 70—176. 

Generally discussed. — The practice and proceedings In supplementary 
proceedings discussed and explained. Hogan v. Kirkland, 64 — 250 ; Rand v. 
Rand, 78 — 12. 

Execution issued, not returned, order to issue upon affidavit. 

(2) After the issuing of execution against property, and 
upon proof by affidavit of a party, bis agent or attorney, to 
tbe satisfaction of the court, or a judge thereof, that any 
judgment debtor residing in the judicial district where 
such judge or officer resides, has property which he unjustly 
refuses to apply toward the satisfaction of the judgment, 
such court or judge may, by an order, require the judgment 
debtor to appear at a specified time and place, to answer 
concerning the same; and such proceedings may thereupon 
be had for the application of the property of the judgment 
debtor towards the satisfaction of the judgment as are pro- 
vided upon the return of an execution, and the judgment 
creditor shall be entitled to the order of examination under 
this sub-division, and under sub-division one of this section, 
although the judgment debtor may have an equitable estate 
in land subject to the lien of the judgment, or may have 
choses in action, or other things of value unaffected by the 
lien of the judgment, and incapable of levy. 

Object of section* — The purpose of § § 488 and 490 is to eive a remedy by 
*' proceeding supplementary to execution, * to a plaintiff, only in case the de- 
fendant has no known property liable to execution, or to what is in the nature 
of execution, proceedings to enforce a sale to satisfy the debt. McKeithan v. 
Walker, 66---95 ; Hutchinson v. Symons, 67 — 156 ; Weiller v. Lawrence, 81 — 
65 ; Hinsdale v. Sinclair. 83 — 338. 

Discussed* — Discussed as establishing by analogy the time when a lien 
attaches to the debt due a judgment debtor assigned by him in discharge of a 
judgment. Perry v. Bank, 70 — 309. 

Either party to examine witnesses. 

(3) On an examination under this section, either party 
may examine witnesses in his behalf, and the judgment 
debtor may be examined in the same manner as a witness. 



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286 CLARK'S CODE OF CIVIL PROCEDURE. 

Debtor leaving the state, or concealing himself y upon affidavit 
of plaintiff J tliat he has property which he refuses to apply ^ 
may be arrested and ordered to give undertaking. 

1868''9, c. 148, 8. 4. 1808-'9y c. 277. 

(4) Instead of the order requiring the attendance of the 
judgment debtor, the court or judge may, upon proof by 
affidavit or otherwise to his satisfaction, that there is dan- 
ger of the debtor leaving the state, or concealing himself, 
and that there is reason to believe that he has property 
which he unjustly refuses to apply to such judgment, issue 
a warrant requiring the sheriflF of any county where such 
debtor may be, to arrest him and bring him before such 
court or judge. Upon being brought before the court or 
judge, he may be examined on oath, and, if it then appears 
that there is danger of the debtor leaving the state, and 
that he has property which he has unjustly refused to apply 
to such judgment, he shall be ordered to enter into an un- 
dertaking, with one or more sureties, that he will, from time 
to time, attend before the court or judge as he shall direct, 
and that he will not, during the pendency of the proceed- 
ings, dispose of any property not exempt from execution. 
In default of entering into such undertaking, he may be 
committed to prison by warrant of the court or judge, as 
for a contempt. 

No person to be excused from answering because it may crimi- 
nate him, nor because he lias executed a conveyance, but 
answer not to be used against him in any criminal prosecu- 
tion. 

(5) No person shall, on examination pursuant to this 
chapter, be excused from answering any question on the 
ground that his examination will tend to convict him of 
the commission of a fraud ; but his answer shall not be 
used as evidence against him in any criminal proceeding 
or prosecution. Nor shall he be excused from answering 
any question, on the ground that he has, before the exam- 



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CLARK'S CODE OF CIVIL PROCEDURE. 287 

inatioD, executed any conveyaDce, assignment or transfei- 
of his property for any purpose, but his answer shall not 
be used as evidence against him in any criminal proceed- 
ing or prosecution. 

A witness can not excuse himself from answering by alleging that his answers 
might be used against him in criminal proceedings. . La Fontaine v. Ugder- 
writers, 83 — 132. 

Court or judge may forbid transfer of property, 

(6) The court or judge may, by order, forbid a transfer 
or other disposition of the property of the judgment debtor 
not exempt from execution, or any interference therewith. 

See Phillips v. Trezevant, 70—176, cited under § 488. (i) ante. 

Sec, 4S9. Execution issued, any debtor of judgment debtor 
may pay to sheriff. C. C. P., s. 265. 

After the issuing of execution against property all per- 
sons indebted to the judgment debtor, or to any one of sev- 
eral debtors in the same judgment, may pay to the sheriff 
the amount of their debt, or so much thereof as shall be nec- 
essary to satisfy the execution; and the sheriff's receipt 
shall be a sufiScient discharge for the amount so paid. 

Sheriff can not make the application. — The sheriff is not authorized by 
this section to apply the proceeds of one execution in satisfaction of another. 
Smith V. McMillan, 84 — 593. 

Order to apply proceeds of execntion to costs doe by jodgment cred* 
iton — Where tne plaintiff is ordered to pay costs it is not irregular to issue 
for the same, in the name of the clerk's office, and if he proves insolvent the 
court can order such bill of costs to be paid out of money m the sheriff 's hands 
collected on an execution in favor of such insolvent. Clerk's Office v. Allen, 
7 Jon., 156. 

This chapter of the Code does not take away, but rather confirms and ex- 
tends the power previously existing and exercised, to hold the funds paid into 
a court in satisfaction of a judgment in favor of a judgment debtor, liable for 
his office costs, in another case. Clerk's Office v. Bank, 66 — 214. 

Does not apply* — This section does not apply where there are several debt- 
ors in the same judgment. Howe v. Miller, 67 — ^459. 
Note. — This section, as now amended, changes this. 
See cases cited under preceding section. 

Sec. 490, Execution issued and returned, upon affidavit, 
order to issue to any person having property ofjudgm^ent 
debtor or to any person indebted to him over ten doUa/rs to 
appear and answer ; proceedings against joint debtors. 
€. a p., s. 266. 1869-'70, c, 79, s. 2, 

After the issuing or return of an execution against prop- 
erty of the judgment debtor, or of any one of several debt- 



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288 CLARK'S CODE OF CIVIL PROCEDURE. 

ors in the same judgment, and upon afBduvit that any per- 
son or corporation has property of said judgment debtor, or 
is indebted to him in an amount exceeding ten dollars, the 
court or judge may, by an order, require such person or 
corporation, or any oflScer or members thereof, to appear at 
a specified time and place and answer concerning the same. 
The court or judge may also, in its or his discretion, re- 
quire notice of such proceeding to be given to any party to 
the action, in such manner as may seem to him or it 
proper. 

The proceedings mentioned in this section and in section 
four hundred and eighty-eight may be taken upon the re- 
turn of an execution unsatisfied, issued upon a judgment 
recovered in an action against joint debtors, in which some 
of the defendants have not been served with the summons 
by which said action was commenced, so far as relates to 
the joint property of such debtors; and all actions by cred- 
itors to obtain satisfaction of judgments out of the property 
of joint debtors are maintainable in the like manner and to 
the like efifect. These provisions shall apply to all proceed- 
ings and actions and to those terminated by final decree or 
judgment. 

See cases cited under § 488, anie, 

Af^nst whom it issues* — A married woman, who received a bond given 
for part of the purchase money of her husband's land, as in lieu of possible 
dower therein, may be compelled to surrender it for the use of a creditor pro- 
ceeding under this chapter. Sutton v. Askew, 66 — 172. 

The superior courts have jurisdiction to hear and determine an action insti- 
tuted by a creditor of a lunatic, for the recovery of a debt contracted prior to 
the lunacy. In such case, where the judge, in the court below, dismissed pro- 
ceedings supplementary to execution : //e/t/, to be error. Blake v. Respass, 

77— 193. 

Supplemental proceedings lie against a private corporation chartered by the 
legislature and organized for the private gain of its stockholders. I«a Fontain 
V. Southern Underwriters, 79 — 511. 

Agreement to deliver specific articles at a piice named^ liow snb* 
jected* — Where it appears from an examination under supplemental proceed- 
ings that the judgment debtor holds a claim against a third party, to be dis. 
charged by the delivery of corn at a stipulated price per bushel, the court can 
not order such person to deliver to the creditor a sufficient quantity of the corn, 
at the agreed price, to satisfy the debt. The proper order is to sell the com 
and apply the proceeds to the debt. In re Davis, 81 — 72. 

Where judgment is paid before tlie receiver files his bond.— If after 

supplemental proceedings instituted and proceedings and a receiver appointed. 



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CLARK'S CODE OF CIVIL PROCEDURE. 289 

but before he filed his bond the defendant paid off the judgment to the plain- 
tiff, the court can not thereafter allow the pleadings to be amended so as to 
make other creditors plaintiffs and continue the proceedings in their be- 
half. Righton V. Pruden, 73—61. 

Sec. 491. Witness required to testify as on trial of an issue* 
C. C. r., s. 267. 

Witnesses may be required to appear and testify on any 
proceedings under this chapter, in the same manner as upon 
the trial of an issue. 

Sec. 492. Party or witness to appear before referee, and 
cmnpeUed to answer under oath ; eocaviination certified to 
court or judge ; corporations to answer by an officer. C. 
C. r., s. 208. 1871''2, c. 245, s. 1. 

The party or witness may be required to attend before 
the court or judge, or before a referee appointed by the 
court or judge; if before a referee, the examination shall 
be taken by the referee, and certified to the court or judge. 
All examinations and answers before a court or judge or 
referee, under this chapter, shall be on oath, except that 
when a corporation answers, the answer shall be on the 
oath of an ofiScer thereof. 

Where proceedings are institllted. — Supplemental proceedings must be 
instituted in the county where the judgment was rendered. Hutchinson v. 
Symons, 67 — 156. 

Where defendant must be examined.— Supplemental proceedings should 



be instituted in the county where (he judgment was rendered, but the place des- 
ignated where the defendant shall appear and answer should be within the county 
where the defendant resides. Hasty v. Simpson, 77 — 69. 

Parties and witnesses ninst appear before the referee.— I'his section 
requires the parties and witnesses to appear before the referee appointed by 
the court. Hasty v. Simpson, 77—69. 

Contempt before referee^ how punished.- A contempt in refusing to 
answer questions under this section can only be punished by the court appoint- 
ing tfie referee, and not by the referee himself. La Fountain v. Underwriters, 
83—132. 

Sec. 493. Property of debtor not exempt fnnn execution to 
be applied to payment of judgment ; exception. C. C. P., 
s. 269. 1870''!, c. 245, s. 1. 

The court or judge may order any property, whether sub- 
ject or not to be sold under execution, (except the home* 
stead and personal property exemptions of the judgment 
debtor), in the hands either of himself or of any other per- 

37 



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290 CLARK'S CODE OF CIVIL PROCEDURE. 

SOD, or due to the judgment debtor, to be applied towards 
the satisfaction of the judgment ; except that the earnings 
of the debtor for his personal services, at any time within 
sixty days next preceding the order, can not be so applied 
when it is made to appear, by the debtor's affidavit or 
otherwise, that such earnings are necessary for the use of a 
family supported wholly or in part by his labor. 

A sabstitute for creditor*8 biiL — Supplemental proceedings are a substi- 
tute for the former creditor's bill and are governed by the principles established 
under the former practice in administering this species of relief in behalf of 
judgment creditors. Rand v. Rand, 78 — 12. 

But the creditor's bill can still be resorted to. Bronson v. Ins. Co., 85 — 411. 

Action for distribntlTe share.-r-A judgment creditor, whose execution has 
been returned unsatisfied, can not maintain an action against an administrator 
to subject a distributive share of the jndgment debtor in the estate; he must 
proceed by supplemental proceedings. Rand v. Rand, 78 — 12. 

Application of proceeds of exeention to paj costs.— Where judgment 
for costs issues against an insolvent plaintiff, the court can order them paid 
out of money in the hands of the sheriff, collected on an execution in favor of 
the insolvent. Clerk's Office v. Allen, 7 Jon., 156; Clerk's Office v. Bank, 
66 — 214. 

Note. — Doubtless, however, the insolvent would now be first allowed his 
personal property exemption, if claimed by him. 

Sec, 494, Judge to appoint receiver; transfer of property 
forbidden ; other creditors having instituted stipplenien^ 
tary proceedings to be notified ; no more than one receiver 
appointed, C, C. r., s, 270, 1870-^1, s, 245, s. Jf. 
1876-'7, c. 223. 1879, c, 63. 1881, c, 51. 

The court or judge having jurisdiction over the appoint- 
ment of receivers may also, by order, in like manner and 
with like authority, appoint a receiver in proceedings under 
this chapter, of the property of the judgment debtor, 
whether subject or not to be sold under execution, except 
the homestead and personal property exemptions. But 
before the appoi